Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2241/16

 

 

CLAIMANT: John Monaghan

 

 

RESPONDENTS: 1. Premier Employment Group Limited

t/a Premier People Northern Ireland

2. Northern Ireland Fire & Rescue Service

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

 

(1) The claimant's claim for unauthorised deduction of his wages by the respondents and either of them, pursuant to the Employment Rights (Northern Ireland) Order 1996, is dismissed, following withdrawal.

 

(2)(a) The claimant's claim against the respondents and each of them, pursuant to the Agency Workers Regulations (Northern Ireland) 2011 is out of time, pursuant to Regulation 18(4) of the said Regulations; and being out of time, the tribunal does not consider, in all the circumstances of the case, that it is just and equitable to consider any such complaint, out of time, pursuant to Regulation 18(5) of the said Regulations.

 

(b) The claimant's said claim against the respondents and each of them is therefore dismissed as the tribunal does not, in the circumstances, have jurisdiction to consider and determine the said claim.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Drennan QC

Appearances:

The claimant was represented by Mr R Cushley, Barrister-at-Law, instructed by O'Reilly Stewart, Solicitors.

The first respondent did not appear and was not represented.

The second respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Directorate of Legal Services (Belfast City Council).

 

Reasons

 

1.1 The claimant presented his claim to the tribunal against the respondent and each of them, on 20 October 2016, on foot of a claim, pursuant to the Agency Workers (Northern Ireland) Regulations 2011 ('the Agency Regulations').

 

1.2 For the reasons set out in the Record of Proceedings, dated 11 April 2017, in relation to a Case Management Discussion on 7 April 2017, this pre-hearing review was arranged to consider and determine the following issues:-

 

"(1) Whether the tribunal has jurisdiction to entertain the claimant's complaint of unauthorised deduction from wages in view of the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996 in relation to the time-limit for presenting such a claim.

 

(2)(a) Whether the claimant's claim, pursuant to the Agency Workers Regulations (Northern Ireland) 2011 is out of time, pursuant to Regulation 18(4) of the said Regulations.

 

(b) If it is out of time, whether, in all the circumstances of the case, the tribunal considers that it is just and equitable to consider any such complaint out of time, pursuant to Regulation 18(5) of the said Regulations."

 

1.3 At the commencement of the pre-hearing review, the claimant's representative orally withdrew the claimant's claims against the respondents and each of them for unauthorised deductions of wages, pursuant to the Employment Rights (Northern Ireland) Order 1996; and the said claim was dismissed, by consent upon withdrawal. In light of the foregoing, it was therefore not necessary for the tribunal to consider and determine the first issue, set out in Paragraph 1.2 above. The claimant's representative also accepted, at the commencement of the pre-hearing review, the claimant's said claim was out of time, pursuant to Regulation 18(4) of the Agency Workers Regulations (Northern Ireland) 2011 in light of the foregoing, the issue to be determined by the tribunal at this pre-hearing review was agreed to be Issue (2)(b) set out at Paragraph 1.2 above.

 

1.4 The first respondent's representative is based in Great Britain. In correspondence to the tribunal, and copied to the representatives of the claimant and the representatives of the second respondent, she informed the tribunal she did not intend to attend this hearing; but she fully supported and endorsed the application of the second respondent, the subject-matter of this pre-hearing review.

 

Therefore, in light of the foregoing, it was not disputed by the representatives that any decision by the tribunal, in relation to the said time-issues, at this pre-hearing review, related to the said claim made by the claimant against the respondents and each of them.

 

1.5 The claimant gave evidence; but the respondents did not call any evidence. At the conclusion of the claimant's evidence, the representatives of the claimant and the second respondent made oral submissions.

 

2. Relevant and material law

 

2.1 The Agency Workers Regulations (Northern Ireland) 2011 ('the Agency Regulations')

 

(i) Regulation 5 :

 

" (1) Subject to regulation 7, an agency worker (A) shall be entitled to the same basic working and employment conditions as A would be entitled to for doing the same job had A been recruited by the hirer —

 

(a) other than by using the services of a temporary work agency; and

 

(b) at the time the qualifying period commenced."

 

...

 

(ii) Regulation 7 :

 

" (1) Regulation 5 does not apply unless an agency worker has completed the qualifying period.

(2) To complete the qualifying period the agency worker must work in the same role with the same hirer for 12 continuous calendar weeks, during one or more assignments. [Tribunal's emphasis]

 

...

 

(iii) Regulation 18 :

 

"(4)  Subject to paragraph (5), an industrial tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months beginning —

 

(a) in the case of an alleged infringement of a right conferred by regulation 5 ..., with the date of the infringement ... to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the infringement, ... the last of them;

 

...

 

(5) 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."

 

2.2 In light of the acceptance by the claimant's representative, that the claimant's claim was out of time, it was agreed the relevant period of time to be considered by the tribunal, in considering whether to extend the claimant's claim on 'just and equitable grounds' was from on or about 30 April 2015 until in or about 20 October 2016, in light of the end of his said period as an agency worker on 30 January 2015 and the presentation of his claim to the tribunal on 20 October 2016. It was agreed that in relation to the interpretation of the provision relating to extension of time 'on just and equitable grounds', pursuant to Regulation 18(5) of the 2011 Regulations, the proper interpretation was set out in relevant case law, where a similar provision to extend time is to be found in the anti-discrimination legislation.

 

2.3 When considering issues of extension of time in relation to an 'original' claim and whether time should be extended on 'just and equitable' grounds , in the case of Miller and Others v Ministry of Justice and Others [UKEAT/0003/15] Mrs Justice Laing in her judgment set out points of general application, as follows:-

 

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

 

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

 

(ii) Time-limits are to be observed strictly in ETs.  There is no presumption that time will be extended unless it cannot be justified; quite the reverse.  The exercise of that discretion is the exception rather than the rule (ibid, Paragraph 25).  In Chief Constable of Lincolnshire v Caston [2010] EWCA Civ 1298; [2010] IRLR 327 Wall LJ (with whom Longmore LJ agreed), at paragraph 25, put a gloss on that passage in Robertson, but did not, in my judgment, overrule it.  It follows that I reject Mr Allen's submission that, in Caston, the Court of Appeal "corrected" paragraph 25 of Robertson. ...

 

(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.

 

2.4 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 once 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."

 

In Malcolm v Dundee City Council [2012] EqLR 363 it was held Employment Tribunals are not required to exercise the discretionary power to extend time sparingly. Further it held, confirming the discretion is a wide and unfettered one, a tribunal will err if it proceeds on the basis that an extension will be refused in all but exceptional circumstances.

 

2.5 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 ABM University Local Health Board v Morgan [2013] UKEAT/0305/13 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 ... ."

 

(approved in British Transport Police v Norman [2015] UKEAT/0348/14).

 

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, but noting the test to be applied is 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, 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. It will depend on the way the tribunal sees the facts.

 

2.6 As seen above, the first relevant circumstance cited in Keeble is the extent of the delay in issue. To know how long the delay has been for limitation purposes, however, one has to know when time began to run.

 

As seen in Outokumpu Stainless Ltd v Law [UKEAT/0199/07], Beatson J stated:-

 

" ... It is necessary for a tribunal considering the exercise of its discretion to ascertain when the time-limit expires in order for it to approach the exercise of discretion properly and lawfully. If it does not it cannot consider the length of the delay and it cannot properly consider whether it is just and equitable to allow the claim to proceed."

 

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 the present proceeding, the claimant, as referred to later in this decision, brought forward evidence in support of his application for an extension of time. In Habinteg there was no explanation for the delay. 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 did not consider relative prejudice, which was an important factor which should normally be considered by an Employment Tribunal.

 

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.

 

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 In a recent decision of the Employment Appeal Tribunal in the case of Odukoya v Tim Hopkins, The Charity Commission and Another [2017] UKEAT/0251/16 it was held, when considering the issue of a just and equitable extension in relation to the presentation of an 'original' claim (ie not in the context of an application for leave to amend a claim):-

 

"17. The onus is on a claimant who bring a complaint after the expiry of the initial three month period to persuade the Employment Tribunal that it is nevertheless just and equitable for her to be allowed to bring the complaint. In deciding what is just and equitable, the Employment Tribunal must take into account all relevant circumstances, looking at the matter against the background of the clear statutory policy that [Equality Act] complaints should be brought within a short period of time. Such circumstances are likely to include (i) length of the delay; (ii)  the reasons for the delay (iii) the prejudice to the respondent in having to face the complaint (in particular, 'forensic prejudice' caused by the delay), and (iv)  the prejudice caused to the claimant by losing the ability to bring a complaint, but there may be more. Assessing the relative prejudice may well involve an assessment (often only a rough assessment) of the strength or weakness of the complaint. I accept ... that in making any such assessment a tribunal must take into account the fact that discrimination claims are fact sensitive and difficult to prove.

 

18. There is, however, no need for a tribunal to go through a 'checklist' of potentially relevant factors as long as they sufficiently explain the reason for their decision. It may be sufficient simply to say, for example, the delay has been 'x' days/weeks/months, and no satisfactory reason has been supplied for it so that, regardless of any other factors, it would not be just and equitable to allow the claim to proceed (although I stress that in giving that example I am not intending to suggest that it is never just and equitable to allow a claim to proceed where no satisfactory reason for the delay is put forward ... ."

 

(This would also appear to give support to the multifactoral approach seen in Pathan, as referred to previously.)

 

2.10 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, following the dicta in Steeds v Perevel Management Services Ltd [2001[ EWCR Civ 419, a personal injury case relating to limitation issues, where the factors under the relevant limitation provisions, were applied; and which, as seen previously, are similar to the 'Keeble Guidance'. If the present proceedings had required the tribunal to apply the test of reasonable practicability, favoured by legal advisers, if any, would have required to be further considered (see Dedman v British Building & Engineering Appliances Ltd [1973] IRLR 379 and EBay (UK) Ltd v Buzzeo [2013] UKEAT/0159/13.)

 

2.11 In the case of British Gas Services Ltd v Basra [2014] UKEAT/0194/19 the Employment Appeal Tribunal, in an amendment case, applying the Selkent test of 'balance of hardship and injustice', which has been held, in various authorities, to be little different to the test of just and equitable (see further Ali v Office of National Statistics [2004] EWCA Civ 1363) refers to the issue of delay and its relevance, in particular, to the issue of prejudice if, in an individual case, evidence is no longer available or is of lesser quality than it would have been earlier. In the present proceedings there were no such suggestions by the respondents.

 

3.1 Insofar as relevant and necessary for the determination of the said primary time-issue, and after considering the documents, to which I was referred in the 'trial bundle', the said oral evidence of the claimant and the oral submissions of the representatives, I made the following findings of fact, as set out in the following sub-paragraphs.

 

3.2 The claimant was employed as an agency worker from on or about 1 February 2012 until in or about 30 January 2015 by the first respondent, on an assignment with the second respondent, as such a worker for the whole of the period, as the physical training adviser for the second respondent. On or about 9 February 2015, the claimant was employed by the second respondent and remains so, in the same role albeit; since 9 February 2015 as an employee and not an agency worker. At all material times, therefore, the claimant has carried out the role of physical training adviser for the second respondent and has been the only person carrying out this role in the second respondent.

 

3.3 After the claimant had issued proceedings on 20 October 2016, when searching for relevant documentation to support his claim, he obtained a copy of a memo, dated 2 March 2012 to all agency staff from a representative of the Human Resources Department of the second respondent. It stated:-

 

"You will be aware that the Agency Workers Regulations were introduced on 5 ^th of December 2011 providing new rights for agency workers. This relates to equal treatment with a comparable worker, following a qualifying period, amongst other things.

 

NIFRS are obliged to seek Board approval specifically in relation to increasing rates, as appropriate, before payments can be made. NIFRS Board has already discussed this issue but will meet again in March with a view to giving final approval. I can confirm that retrospective payment will be made, as appropriate to all agency staff following Board approval.

 

NIFRS have advised all the relevant agencies in relation to this matter."

 

I accept, on the basis of the claimant's evidence, which was not seriously challenged on this issue, that he was not aware of this document until after he had issued the present proceedings. This document, however, confirms to me that, if time is extended on just and equitable grounds, there would be no 'real/forensic' prejudice to either of the respondents, other than having to defend these proceedings at a substantive hearing. Indeed, no such 'real/forensic' prejudice was suggested during the course of this hearing.

 

3.4 Although the claimant has, at all material times, been employed as a physical training adviser, he has always wished to be recruited as a fire-fighter. Indeed he described this as his 'goal in life'. Indeed, he is currently part of such a recruitment process in relation to the second respondent, which process commenced in or about February 2017. The claimant, during the period material to this application, has also taken part in several other recruitment exercises, to be employed as a fire-fighter for different fire services in Great Britain. The claimant is a graduate in sports studies and environmental management and has a diploma in personal training and has had employment in this field since graduation, but, in the period immediately before his employment with the first respondent, as an agency worker, he worked as a forklift driver outside this jurisdiction.

 

3.5 In or about 2013, the claimant recalled his 'line manager', at the second respondent, made some limited reference to the Agency Regulations; but this was in the context that, in light of those Regulations, agency staff working in the Fire Service could now use the fitness facilities in the gym. The claimant made no enquiries at that time about the Agency Regulations, referred to by his 'line manager'.

 

3.6 In or about August/September 2015 the claimant became aware of a rumour, circulating around the second respondent from another agency worker, who was employed by a different agency to that of the first respondent. The rumour was to the effect 'all agency staff are underpaid/have not been paid the pay to which they are entitled'. Initially this came up during the course of general conversation and he did not give it much attention until in or about November 2015. The rumour was then confirmed to him by a clerk, who was working in the Human Resources Department of the second respondent. This clerk confirmed to him she had been tasked to do a relevant calculation in relation to underpayments for agency staff. The claimant accepted he had no reason to doubt what this clerk had said to him and indeed he began, in light of this, to believe he might have entitlement to some additional payments. He understood from this clerk the calculations were taking a long time to do. He assumed the calculations must be taking place for a reason, namely to make payments, and were not merely an exercise being carried out by the second respondent with no real purpose. However, no such payments were forthcoming.

 

3.7 As a consequence, on or about 26 January 2016, by e-mail he decided to take further action and wrote to the first respondent's branch manager:-

 

" ... Although I have since been permanently contracted to the NIFRS directly it has been brought to my attention that a large back payment is due to me from the Fire Service as they did not move me up to statutory pay increments for a Scale 5 employee during the three year timeframe I was agency based.

 

A percentage of this no doubt is owed to your company as my employer at the time which was in the range of 10% if my memory serves me correctly.

 

I am messaging Premier just to check can you provide me with an update regarding this situation? As I know a large number of other Premier based employees [ie Premier Agency staff in the second respondent] are currently in the same boat regarding the NIFRS but unfortunately no one here has ever informed me such money is due or even mentioned a potential schedule for repayment. No rush replying as this is just a general enquiry for my own information and benefit as to potential dates/times etc just to ensure it isn't been forgotten about at either end.

 

Any information provided will be treated with the upmost privacy and likewise I would appreciate it if my name was not directly used in any enquiries initially made by Premier or yourself as it obviously could cause a disturbance in my current permanent role ."

 

[ Tribunal's emphasis]

 

He received a reply, by e-mail dated 2 February 2016:-

 

" ... I have had a chance to look at this now and I do not remember anything regarding back pay, however do you mean yearly increments? With the framework each year workers who qualify get moved up to a new rate the same as permanent staff, however, the NIFRS went on the framework I think you left our books, so I do not think this applied. We only have pre-in-post AWR rates on file here now.

 

Should you be referring to action spine points or levels then I think the client would have notified us at the time regarding that.

 

I hope this helps.

 

... ."

 

The claimant responded by a further e-mail, dated 2 February 2016:-

 

"Thanks again for having another look at my query its greatly appreciated as always.

 

You are right I was referring to the yearly increments! The NIFRS only went on the framework on 2 ^nd 02/01/2014 so since I was on your books from 02/02/2012 until 08/02/2015 I felt it was worth asking the question about potential for back payments.

 

Considering the attached Agency Worker Regulations came into play in 2011 specifically the highlighted statements on Pages 29 and 33 regarding increment payment I wanted to double check did I move up to the new rate the same as permanent staff after my initial 12 week qualifying period? If so, I am no doubt not owed a penny but if not I might have a case.

 

I know a few individuals from Grafton's team are in talk with the NIFRS currently about this topic and their specific NIFRS agency staff so I'm happy to see how it works out for them before worrying too much about my query since I'm contracted permanently to NIFRS and do not want to ruffle any feathers here and effect my day job but I thought I would touch base first with yourself just to see if could shed any early light on the situation. ... ."

 

[ Tribunal's emphasis]

 

In an e-mail, dated 22 March 2016, the first respondent's branch manager replied:-

 

"The information is much the same as before we have never been advised to apply back payments of this nature. Sorry I could not help any more."

 

3.8 At some stage, during the course of this e-mail exchange, the claimant downloaded from the internet a copy of the Agency Regulations. Indeed, it is seen that such a copy was attached to the e-mail to the Branch Manager of the first respondent. The claimant maintained, in evidence, he only ever looked at Regulations 5 and 7, relating to the qualifying period of 12 weeks but at no time had he looked at the provisions in Regulation 18, relating to how to enforce any breach of the Regulations and/or the relevant period in which any such claim should be made. I found this surprising; but also relevant and significant in the context of this application. Indeed, I concluded it was consistent with his wish, as set out in the e-mail exchange, not to 'ruffle any feathers here and effect my day job'. Indeed, during the course of his evidence, the claimant confirmed that, in essence, he did not wish to put his 'head above the parapet' because he was concerned this might effect his recruitment as a fire-fighter, which was his goal in life. He was also very conscious that it was hoped such an exercise for recruitment as a fire-fighter to the second respondent would commence in the months following this e-mail exchange and he did not wish to attract any stigma to himself as a person who 'causes trouble'.

 

3.9 The claimant suggested, in evidence, he had not sought legal advice in or about August 2015/November 2015, despite the information that he had obtained by that stage, as referred to above, because he said that he could not afford to do so. Indeed, in this context, the claimant suggested that he had never heard of the Equality Commission and was only vaguely aware of industrial tribunals and their roles in employment matters. This was despite the fact that he has lived in Northern Ireland for most of his life and as a graduate is clearly an intelligent person. I found his purported lack of any knowledge of such matters less than credible in the circumstances. He gave no thought to issues of time-limits to enforce any claims. He accepted that he was aware of the existence of the Citizens Advice Bureau but not much more. He also acknowledged he had a personal friend who was a barrister, but had not discussed the matter with the barrister at any time. Despite all of this, in any event, he took no steps from August 2015 to March 2016 to obtain any relevant advice, even though by that time, he had not only obtained a copy of the Agency Regulations and looked at the provisions in relation to entitlement but he was also aware of relevant calculations had been taking place in the offices of the second respondent and had believed from in or about November 2015 he might have some entitlement to additional payments under the Agency Regulations. It is also necessary to note, in the context of this applicant, time had been running from on or about 30 April 2015. Indeed, in or about April 2016, he had obtained from a member of the staff in the second respondent a document showing a specific calculation which had been made in relation to himself, if he was entitled under the Agency Regulations. This showed precise figures which had been calculated in relation to himself, together with a copy of the framework document, which is referred to in the e-mail exchange in or about February 2016, referred to previously.

 

3.10 Despite the fact that the claimant had now in his possession all the above information, it was not until or on about 21 July 2016 he spoke to and then sent an e-mail, in relation to his position, to members of his line management in the second respondent. The claimant suggested, in evidence, that part of his reason for taking no further action between in or about March 2016, following the conclusion of the e-mail exchange, referred to previously, until on or about 21 July 2016, was that the clerk in Human Resources, who had provided to him, in or about April 2016, a copy of the relevant calculation in relation to himself was also an agency member of staff and she had asked him to wait until she had obtained alternative non-agency employment, which she did in or about July 2016. The claimant said he was not sure if she had been meant to provide him with this information and he did not wish to cause her any trouble until she had obtained permanent employment herself. However, I think that the more relevant factor in the failure of the claimant to take any appropriate action during the whole of this period related, as before, to his 'fear of stigma', 'ruffling feathers' and causing problems for him in relation to his employment with the second respondent but more particularly in relation to any future recruitment exercise as a fire-fighter.

 

3.11 In his e-mail dated 21 July 2016 to his line management at the second respondent the claimant, as set out below. It is of some interest that he headed this e-mail:-

 

"John Monaghan Agency Working Payment

Agency Workers Regulations

 

... As discussed earlier today would it be possible to get an official update from Human Resources or the Finance Department on the payment due to me in relation to the Agency Worker Regulations (Northern Ireland) which came into operation on 5 ^th of December 2011.

 

From 06/02 2012 until 30 ^th/01 2015 I was employed by Premier People Lisburn on behalf of the NIFRS as a Scale 5 physical training adviser.

 

According to the Regulations, following successful of the 12 week qualifying period (30 ^th/04/2012) I was due to achieve full pay for a Scale 5 substantive NIFRS employee and then climb the incremental pay scale which fortunately did not happen during this three year period resulting in a loss of earnings of around 4,000 - 5,000.

 

Page 29 of Agency Workers Regulations

 

Having completed the 12 weeks qualifying period, the agency worker is entitled to the same basic terms and conditions that she or he would have received if recruited directly. This includes terms and conditions relating to key elements of pay. Pay for those purposes means sums of money paid to the worker in connection with the worker's employment.

 

Pay includes basic pay on annual salary an agency worker would have received if recruited directly usually converted into hourly or daily rate taking into account any pay increments.

 

Page 33 Annual pay award

 

Where a hirer gives an annual pay increment, an agency worker should receive they pay increment that he or she would have been entitled to if recruited directly to do the same job, therefore the temporary worker's agency and hirer need to keep in touch to ensure that agency workers receive correct pay entitlements.

 

It seems an honest mistake may have been made between Premier People and NIFRS during this timeframe but it would be great if I could get an update on when NIFRS can rectify the error and repay the amount outstanding."

 

On or about 26 July 2016 , following his sending of this e-mail, he was invited to speak to Ms Magee of the Human Resources Department of the second respondent. She was clearly aware of the issue and the recent e-mail correspondence by the claimant. She said she had sought legal advice on the matter but the second respondent was not required to make any back payments to him and, as far as she was concerned the matter was closed. She did not make any reference to any obligations which may or may not have fallen on the first respondent. However, she did advise him to get legal advice.

 

3.12 On or about 5 August 2016, the claimant consulted his present solicitors. In essence, from that date, he left the matter in the hands of his solicitors.

 

On or about 5 August 2016, the claimant's solicitor wrote to Ms Magee of the second respondent stating:-

 

"We have been instructed by our above-named client in relation to outstanding monies owed to him in the sum of £4,723.

 

We are instructed by our client that he commenced employment via Premier Employment Group Ltd in the role of physical training adviser on the 1 ^st of February 2012. Under the Agency Workers Regulations (Northern Ireland) 2010, our client should have received the standard Scale 5 salary associated with this role following 12 weeks of his assignment. We request that you let us have payment in the sum of £4,723 within seven days from the date of this letter or we will have no alternative but to issue legal proceedings against you.

 

Please note that similar correspondence has been sent to Premier Employment Group Ltd."

 

[ Tribunal's emphasis]

 

Indeed, in a letter, dated 5 August 2016, the claimant's solicitor wrote, in similar terms, to the first respondent at its main office in Great Britain. He also sent a letter, in similar terms, to the branch manager of the first respondent in Northern Ireland on 8 August 2016.

 

By letter dated 15 August 2016, the second respondent's solicitors wrote to the claimant's solicitors stating:-

 

" ... I have considered the allegation contained in your letter of claim. You have stated that your client commenced 'employment' via Premier Employment Group Ltd in February 2012. You have also set out that you believe your client should have received a particular salary after 12 weeks on assignment. For the purpose of considering the allegations, perhaps you would provide me with a copy of your client's contract with Premier Employment Group Ltd along with the breakdown of the amount claimed. I would confirm that I also await my client's detailed instructions.

By letter dated 22 August 2016, the claimant's solicitors provided to the second respondent's solicitor a copy of the claimant's contract of employment with the first respondent, dated 1 February 2014 and a breakdown in calculation of the claimant's loss.

 

By letter dated 7 September 2016 the claimant's solicitors wrote to the branch manager of the first respondent referring to the letter dated 8 August 2016 and that no response had yet been received. The claimant's solicitors wrote again to the second respondent's solicitors on 7 September 2016, referring to their earlier letter dated 22 August 2016 and asking for a response.

 

By an e-mail, dated 13 September 2016, the branch manager for the first respondent wrote to the claimant's solicitor stating:-

 

"We are currently investigating back pay monies with our client in relationship to this matter and will provide an update in due course."

 

By letter, dated 14 September 2016, the second respondent's solicitors informed the solicitors for the claimant:-

 

"I will confirm that whilst I am in receipt of some instructions from my client, I continue to await full and complete instructions in respect of all the allegations made by your client, in order that a comprehensive and meaningful response could be provided to you.

 

I hope to be in a position to return in the very near future."

 

By letter, dated 23 September 2016, the claimant's solicitors wrote again to the solicitors for the second respondent seeking a response. The claimant's solicitors sent a similar e-mail to the branch manager for the first respondent on 29 September 2016 looking for a response from the first respondent. No response to this correspondence was received before the claimant presented his claim to the tribunal on 20 October 2016.

 

3.13 By e-mail, dated 20 October 2016, the claimant himself wrote to the first respondent stating:-

 

"I'm writing to request an update either directly to myself or my legal team as to why there has been no official response to my solicitors' letter sent on 5 ^th of August 2016 in relation to the Agency Workers Regulations breach of contract between 2012 - 2015. The exact figures of money owed for all affected agency staff including myself has been calculated a month ago by our Finance Department so I don't hold the holdup and lack of communication towards my solicitor regarding this matter. As of this morning (20 ^th/10/2016) no comprehensible, meaningful response has been received from NIFRS which is causing my a lot of personal stress and anxiety having to not only worry about covering the costs of constant legal letters chasing after money I've already honestly earned, something a member of staff should never have to do but also having to daily work in an environment where I don't feel my issues are being treated fairly or in a professionally timely fashion by my very own Department is a hard place to remain happy or focused. I await 11 weeks and so far a two sentence holding letter was sent on 15 ^th of August and again on 14 ^th of September from Belfast City Council stating their client wants more time to look into an issue that the HR Department has already been aware of for over a year, this I find very tough to take and comprehend having given nearly five years of exemplary service to NIFRS. I feel that an accurate detailed response was warranted well before now. My solicitor as of this morning has drafted tribunal documents which I suspect will be submitted later this evening/early tomorrow Friday 21 ^st/10/2016.

 

My apologies for e-mailing but I feel some form of communication has to be documented on my end at least as I can't let it drag on at the expense of my own personal finances and mental health."

 

[ Tribunal's emphasis]

 

4.1 In light of my findings of fact and legal authorities referred to previously, I reached the following conclusions, as set out in the following sub-paragraphs.

 

4.2 In deciding whether to extend time on 'just and equitable grounds' the discretion is wide and, as seen in the authorities referred to in Paragraph 2 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.

 

4.3 There is no 'real or forensic' prejudice to the respondents, or either of them and the cogency of the evidence is not likely to be affected by any delay in bringing proceedings by the claimant. Indeed, the absence of any prejudice does not result in an automatic extension (see further Lindsay). The claimant consulted solicitors on or about 5 August 2016. This was at a time when the claimant's claim was already out of time, which I have no doubt would have been known to the solicitor whom he instructed and therefore, if this claim was to be brought to an industrial tribunal, an extension of time, would be required on 'just and equitable' grounds. There was therefore, at that time, already an urgency to present a claim to the industrial tribunal 'to stop time running'. The solicitor issued 'seven day' letters to both respondents. There was then, in essence, some 'holding correspondence' from both respondents to the claimant's solicitor during August/ September 2016. Given it appeared there could be a meaningful response by the respondents and each of them during this period, I have considerable sympathy in the circumstances why proceedings were not immediately launched. Indeed, this would not have been, in the circumstances, a reason, in itself, to refuse to extend time on 'just and equitable' grounds. However, by the end of September 2016/early October 2016, it must have been clear that there was to be no meaningful response from the respondents and each of them and that it would therefore be necessary, if the claimant was to establish any entitlement under the Agency Regulations, to bring proceedings in the industrial tribunal. In this context, I find it somewhat surprising, given that time was continuing to run, there was further delay until 20 October 2016. That further period of delay was not fully and properly explained during the course of this pre-hearing review. Indeed, it is possible to speculate about the various reasons for this further delay. Although the claimant had left the matter 'in his solicitor's hands', I note he still felt it necessary to send to the second respondent his e-mail of 20 October 2016. This, in my judgment, raises the possibility that this further period of delay in bringing proceedings may relate to the fact that relevant instructions to proceed were not given by the claimant to his solicitor, due to the claimant's continued reluctance, as was evident throughout the relevant period to put his 'head above the parapet'. If the reasons related to the actions of the solicitor alone and it was then suggested he was at some fault for not acting earlier, I would not have found this a relevant determinative factor in any event, in view of the dicta referred to previous Paragraph 2.10 of this decision, in the cases of Virdi and Chohan. In view of my conclusions, as set out below, in relation to what had taken place before the claimant took legal advice and instructed solicitors, it was not necessary for me to consider this further period of delay and/or to speculate any further as to the reasons for this further period of delay.

 

4.4 By in or November 2015, the claimant, on the basis of the earlier rumour but, more particularly, the confirmation from the clerk in the second respondent that, in essence, the rumour was correct and relevant calculations were taking place about agency workers' entitlement, he already believed he might have some entitlement to such additional payments under the Regulations. It has to be recognised that, in his e-mail of 26 January 2016 to the first respondent the claimant did take some action. However, the e-mail was not, in essence, a letter of claim, similar to the solicitor's letter of 7 September 2016; but was couched in terms to ensure 'he did not put his head above the parapet' and would not cause a disturbance in his then current permanent role with the second respondent. It is also apparent that the claimant was also anxious not to do anything which he felt might put at risk his application to be a fire-fighter in any future recruitment exercise by the second respondent, in circumstances which he believed such an exercise was due to start in the not too distant future. No doubt, if the claimant had obtained legal advice, at or around this time, he would have been fully advised that his claim was already out of time and the provisions relating to extension of time on 'just and equitable' grounds; but it is also likely he would also have been advised about the provisions relating to victimisation/ detriment/whistleblowing where proceedings are required to be brought by an employee against his employer and he has proper concerns about 'ruffling feathers'. However, the claimant, who I have no doubt is an intelligent person and who had no difficulty in searching on the internet, as he did to obtain a copy of the Agency Regulations, made no attempt to obtain legal or other professional advice at this time. Even if the period of delay from November 2015 should be disregarded, I am not satisfied the further period of delay from the conclusion of the e-mail chain of correspondence in early February 2016 can be similarly disregarded. The claimant, by that time had a copy of the Agency Regulations, which not only showed he had the relevant entitlement period of 12 weeks but also, if he had taken the time and effort to read it, how such any entitlement could be enforced and the time periods to do so. I am satisfied, by his e-mail of 2 February 2016 to the first respondent, if not earlier, the claimant had sufficient information to know that he might have a claim, on foot of the Agency Regulations. Yet he still took no steps to obtain relevant advice. He still did not do so, following receipt of the e-mail from the first respondent on 22 March 2016, which showed that no action by the first respondent was going to be taken to satisfy any potential claim of the claimant, without the necessity for relevant proceedings.

 

4.5 Having considered the terms of his e-mail of 2 February 2016, I am satisfied the claimant, at that time, and again in late March 2016, the claimant took a conscious and deliberate decision not to take any proceedings at that time because, as he said, he did not want to 'ruffle any feathers' and/or 'effect his day job'; but also because he did not want to have any negative effect on any future recruitment exercise for a fire-fighter (his 'goal in life') or to attract 'stigma to himself as a person who causes trouble'. This was at a time when I am satisfied the claimant had all the relevant information to bring proceedings or, at least, obtain relevant advice. By this stage, any claim by the claimant on foot of the Agency Regulations, was already some considerable period out of time. The claimant then further delayed until on or about 21 July 2016, when the clerk, who had given him further information relating to a specific calculation carried out in relation to himself by the second respondent, had ceased to be an agency worker with the second respondent and had obtained alternative permanent employment with another employer. However, as stated previously, I consider the more relevant factor relating to this further period of delay, was again due to the claimant's 'fear of stigma', 'ruffling feathers' and causing problems for himself in his employment with the second respondent, but, more particularly, in relation to any future recruitment exercise as a fire-fighter with the second respondent. He was, at all relevant times, aware such a recruitment exercise was due to commence, albeit it had not yet started at that time. Clearly, the longer delay in bringing proceedings, the greater the chance the recruitment exercise would be running at or about the same time as he was involved in tribunal proceedings.

 

4.6 A reluctance by any claimant to bring proceedings may be understandable, but mere reluctance is not enough, in my judgment, for the purposes of this application. Indeed many parties, if not all, would frequently express such reluctance 'to go to court/tribunal'. As the relevant legal authorities show, the importance of the time-limits remain and the exercise of the discretion to extend time is the exception rather than the rule. The grounds on which the claimant relies for his reluctance to bring proceedings and/or seek advice, as set out previously, are not, in my judgment, grounds on which he is entitled to rely upon, in the circumstances, to enable the tribunal to extend time on 'just and equitable grounds'. The claimant took a conscious and deliberate decision not to proceed, for the reasons outlined above, in November 2015 but more importantly, in or about February/March 2016, when, in my judgment, he had already sufficient relevant information to enable him to bring proceedings or, at least, obtain relevant advice. Having so decided, not to either bring proceedings and/or seek such advice, I am not satisfied that the claimant has shown, in all the circumstances, that time should be extended on just and equitable grounds.

 

5. The claimant's claim against the respondents and each of them is therefore dismissed, as the tribunal does not, in the circumstances, have jurisdiction to consider and determine the claim of the claimant.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 26 April 2017, at Belfast

 

 

Date decision recorded in register and issued to parties: