Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 4127/17IT

 

 

 

CLAIMANT: Anonymised Claimant

 

 

RESPONDENTS: 1. Anonymised Respondent

2. Anonymised Respondent

3. Anonymised Respondent

 

 

 

DECISION ON A PRE-HEARING REVIEW

 

1.          The tribunal does not have jurisdiction to entertain the claimant's claim for unfair constructive dismissal; that claim is dismissed.

 

2.          The tribunal does not have jurisdiction to entertain the claimant's claim for breach of contract regarding notice pay and holiday pay. Those claims are dismissed.

 

3.          The tribunal orders that, whilst the claimant's claim of sex discrimination is out of time, it is just and equitable for the tribunal to consider this claim.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Employment Judge Browne

 

 

Appearances:

 

The claimant was represented by Ms Sarah Agnew, Barrister-at-Law, instructed by O'Hare Solicitors.

 

The respondents were represented by Ms Emma McIlveen, Barrister-at-Law, instructed by Kearney Sefton, Solicitors.

 

 

ISSUES AND EVIDENCE

 

1.          The tribunal was required to determine the following issues:

 

 

(i) Whether the tribunal has jurisdiction to entertain the claimant's claim for unfair constructive dismissal, in light of the provisions of Article 245 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order")?;

 

(ii) Whether the tribunal has jurisdiction to entertain the claimant's claim for breach of contract in light of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 ('the 1994 Order")?;

 

(iii) Whether the tribunal has jurisdiction to entertain the claimant's claim of sex discrimination, pursuant to Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 ("the 1976 Order"), and, if it is out of time, whether it is just and equitable, in all the circumstances of the case, for the tribunal to consider this claim, despite the fact that it is out-of-time?

 

2.          The claimant has another case for determination by the tribunal, case reference 1485/17, lodged on 9 March 2017, while she was still employed by the first-named respondent. Her claim in that case is for sex discrimination and sexual harassment.

 

3.          Her allegations in the present case flow from essentially the same factual background as that case, namely, the aftermath of the complaint she made about sexual harassment of her by a colleague. As a direct result of the claimant's complaint about his behaviour towards her, that colleague was disciplined by the first-named respondent, and received a final written warning.

 

4.          Her claim in this case is, in broad terms, that, because of the way she was treated by her employer and work colleagues as a result of making her original complaint, she felt that she had no option but to resign.

 

5.          That resignation forms the basis of her constructive unfair dismissal claim and her sex discrimination claim, which are the subject of this pre-hearing review. She also seeks now to claim that, in addition to that unfair constructive dismissal and sex discrimination, the first-named respondent as her employer breached her contract by failing to pay her notice pay and holiday pay upon her resignation, which claims are also the subject of this pre-hearing review.

 

6.          The claimant resigned from her job on 30 March 2017. She did not lodge her claim form in this case until 3 July 2017, immediately following a Case Management Discussion in case reference 1485/17.

 

7.          The claimant conceded in evidence to the tribunal that, whilst she had filled in the tribunal claim form ET1 in case reference 1485/17 without professional legal advice, she had had a meeting with the Equality Commission on 28 April 2017 regarding the substance of what later became the present claim, case reference 4127/17. She had also instructed solicitors to act on her behalf from 24 April 2017.

 

8.          The Equality Commission had written to the claimant in general terms on the same date as her meeting. The claimant gave evidence that she had been told that no decision about taking on her case would be reached by the Equality Commission for at least sixteen weeks.

 

9.          Of note was that the letter of 28 April 2017 contained advice to the claimant that she ought to write to her employer to state that its treatment of her may amount to unlawful discrimination on the grounds of her sex. Such an assertion, in effect, mirrored the claim she had already lodged in case reference 1485/17. The claimant contended that she had received no other advice from the Equality Commission as to the possibility of a claim for unfair constructive dismissal. I am satisfied that her assertion in that regard is probably correct, as there is no specific reference to unfair dismissal in the Commission's letter.

 

10.       I am also satisfied that it is likely that her solicitors similarly did not raise with her the concept of unfair constructive dismissal. It seems to me unlikely that, if they had, it would have remained in abeyance until 3 July 2017.

 

11.       The Commission's letter is clear however in advising the claimant that there is a
three-month time limit for sex discrimination claims, and it also alludes to the possibility of "other legal issues", which presumably includes unfair dismissal. Any advice given would appear only to have been in the most general terms.

 

12.       As far as the claimant was concerned, I was not satisfied from her evidence that she was unaware of the meaning or implications of the Commission's letter to her of 28 April. The Commission, giving her only general legal guidance, made it clear that it would be some considerable time before any decision would be taken about conducting her case. The onus on the claimant to seek separate legal advice was already in place by her consultation with solicitors on 24 April 2017 (after she had resigned), and her subsequent instruction of them in June 2017 (with two weeks still to run to lodge a fresh claim).

13.       As regards her claims for notice pay and holiday pay, I am of the view that these are straightforward, being, in essence, claims for "money owed" by the respondent upon termination of the claimant's contract, however or for whatever reason it ended. As such, no specialist legal advice would be required, and, in the absence of sound reason to the contrary, ought readily to have been apparent to the clamant, as well as to her legal advisers. Those claims also are subject to the tests of three months and reasonable practicality.

 

LAW AND CONCLUSIONS

 

14.       The relevant law on bringing claims of the type presented by the claimant is identical on each head of claim under the 1996 Order and the 1994 Order. Article 145 of the 1996 Order, dealing with unfair dismissal, makes clear that such claims must be presented within three months of the effective date of termination. A tribunal does not have jurisdiction to deal with any such claim if it was presented outside that period, unless the tribunal is satisfied that it was not reasonably practicable to do so. Even if it was not reasonably practicable, the tribunal may not deal with it if it considers that it was not presented within a further reasonable period.

 

15.       Article 145 of the Employment Rights (Northern Ireland) Order 1996 (ERO) states:

 

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

 

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

 

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

 

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

 

16.       The effective date of termination (EDT) of the employment is defined in Article 129 of ERO: (a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires, (b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect.."

 

17.       Determination of the effective date of termination is a question of fact for the tribunal.

 

18.       As regards the claimant's claim for sex discrimination, the time limit for submission is contained in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976:

 

"76.-”(1) [F1Subject to Article 76A, an industrial tribunal] shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of-”

 

[F2(a) the period of three months beginning when the act complained of was done; or

 

(b) in a case to which Article 82(9A) applies, the period of six months so beginning.]

 

(2) [F3Subject to Article 76A, a county court] shall not consider a claim under Article 66 unless proceedings in respect of the claim are instituted before the end of-”

 

(a)        the period of six months beginning when the act complained of was done; or

 

(b)        in a case to which Article 66(5) applies, the period of eight months so beginning.

 

(3) [F4Subject to Article 76A, an industrial tribunal] or county court shall not consider an application under Article 72(2)( a) unless it is made before the end of the period of six months beginning when the act to which it relates was done; and a county court shall not consider an application under Article 72(4) unless it is made before the end of the period of five years so beginning.

 

(4) [F5Subject to Article 76A, an industrial tribunal] shall not consider a complaint under Article 73(1) unless it is presented to the tribunal before the end of the period of six months beginning when the act complained of was done.

 

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

 

19. Thus, the test for acceptance of a late claim is wider than that of reasonable practicability imposed by the 1996 Order and the 1994 Order.

 

20. The effective date of termination in this case is agreed as being 30 March 2017. The latest date for submission was therefore 30 June 2017, whereas the claim from was lodged on 3 July.

 

21. I have had considerable assistance from Tolley's Employment Handbook chapter 18.20 in reaching my conclusions as to the correct approach to take on the particular facts of this case.

 

22. It is a question of fact in each case whether it was reasonably practicable to present a claim in time. The Court of Appeal in Palmer v Southend-On-Sea Borough Council [1984] 1 All ER 945, [1984] 1 WLR 1129, [1984] ICR 372 was able to offer no more specific test than that the tribunal should ask whether it was 'reasonably feasible' to present the claim in time - a test which May LJ acknowledged was easier to state than to apply. The general approach to be adopted was stated by the Court of Appeal in Marks & Spencer plc v Williams-Ryan [2005] EWCA Civ 470, [2005] IRLR 562 to be that the statute should be given a liberal interpretation in favour of the employee.

23. Whilst in Theobald v The Royal Bank of Scotland plc [2007] All ER (D) 04 (Jan), the EAT suggested that such a conclusion is against the weight of other authority, the emerging view seems to me to be that the wider approach is appropriate, depending of course upon the individual facts of each case.

 

24. It seems to me that, even adopting a more liberal interpretation of the legislation, the claimant in this case is unable to satisfy the tribunal that it was not reasonably practicable for her to present a complaint because of ignorance of the right to claim for unfair constructive dismissal. The situation in this case appears to me to be somewhat different from the usual scenario of an employee being told, for example, to leave his or her employment. It remains the case however that the claimant and her solicitors ought reasonably to have known that losing her job because of the alleged behaviour of the respondents was something which required separate proceedings to be brought for unfair dismissal.

 

25. If the claimant can properly be deemed reasonably to have known of her right to such a claim, even in a general sense, then it will probably be held that it was reasonably practicable to present a complaint within the time limit, whether or not she in fact knew of the right (see Porter v Bandridge Ltd [1978] 1 WLR 1145, [1978] ICR 943). However it is always necessary for the tribunal to consider what the claimant knew, and whether her lack of relevant knowledge was reasonable.

 

26. If the claimant had knowledge of her rights, there arises an obligation upon her to seek information or advice about the enforcement of those rights ( Trevelyans (Birmingham) Ltd v Norton [1991] ICR 488), and accordingly ignorance of time limits may well be held not to be reasonable if the claimant was aware of the right to claim but made no further enquiries about how or when to do so: Reed in Partnership Ltd v Fraine (UKEAT/0520/10).

 

27. In the present case, I am satisfied that the claimant was probably seeking the support of the Equality Commission to fund legal assistance to present her existing case, lodged on 9 March 2017.

 

28. I am not satisfied from the claimant's evidence that there was any practical impediment to lodging an unfair dismissal claim, even in the most general terms, within time.

 

29. The claimant in this case was sufficiently aggrieved to lodge her first claim, well within time. The fact that she sought help from two sets of legal professionals reinforces my view that she was taking the matter very seriously, and was seeking assistance from appropriately qualified sources. It is my view that she only failed to do so because neither set of the legal professionals she consulted raised the issue of unfair constructive dismissal.

 

30.       The question whether a claimant is fixed by the error of his or her adviser is sometimes said to turn on whether the adviser concerned was a 'skilled adviser'. That is a question of fact, depending on the particular circumstances of the case: Theobald v Royal Bank of Scotland plc [2007] All ER (D) 04 (Jan). The EAT in that case also made the distinction between instructing an adviser to act on the employee's behalf, in which case it will usually be held to have been reasonably practicable to present the claim in time, and taking advice from an adviser but retaining control over the submission of the claim, where the fault of the adviser in giving erroneous advice will not count against the claimant; however this distinction was rejected by the EAT in the subsequent case of T Mobile (UK) Ltd v Singleton [2011] All ER (D) 12 (May), where it was held that the mere taking of advice from a solicitor was sufficient to fix the claimant with the solicitor's negligence in failing to alert him to the correct time limit.

 

31.       Whilst the tribunal is slow to deprive a claimant of a means of redress, I am not satisfied that there is a sufficiently cogent reason to set aside the clear wording of the statute, which was reiterated to the claimant by the Commission's letter to her of 28 April 2017. It is my conclusion that the claims for unfair constructive dismissal, holiday pay and notice pay are out of time, and there was no reason why it was not reasonably practicable to lodge them within time. They are therefore dismissed.

 

32.       As regards the new claim for sex discrimination, I am of the view that it too is out of time. It then becomes necessary to decide whether or not it is just and equitable to admit it.

 

33.       In Hutchinson v Westward Television Ltd (1977) ICR 279, the phrase "just and equitable", in the context of s 76(5) SDA, was considered. The EAT emphasised that those words gave the industrial tribunal a very wide discretion and, moreover ". . . deprecated [the] very simple wide words becoming encrusted by barnacles of authority". As demonstrated by the case law, the onus of upsetting the exercise of such discretion is a heavy one, depending as it does on demonstrating that the tribunal had erred in law, or was perverse.

 

34.       The import of "just and equitable", in the context of s 68(6) RRA, was again considered in Trusthouse Forte (UK) Ltd v Halstead, EAT, July 29, 1986 (213/86), where the applicant claimed both unfair dismissal and discrimination on the ground of race.

 

35.       Mrs Halstead, who was registered disabled (a green card holder) suffered from sickle-cell anemia and in consequence was absent from work for long periods. She was eventually dismissed on June 3, 1985. She determined to claim both unfair dismissal and race discrimination - the latter because only people of Afro-Caribbean extraction suffer from sickle-cell anemia. Accordingly, she went to Brixton Advice Centre. The solicitor there wrote to THF on her behalf, setting out the general nature of her unfair dismissal claim, but failing to mention any potential discrimination claim. Though Mrs Halstead subsequently visited the Centre on a number of occasions, the unfair dismissal and race discrimination applications were not received by the Central Office of Industrial tribunals until September 13 - 11 days out of time.

 

36.       At a preliminary hearing on the jurisdiction issue, the tribunal found that it had not been reasonably practicable to present the unfair dismissal application out of time. Equally, they held that it would be just and equitable to hear the out of time race discrimination complaint. The employers appealed to the EAT.

 

37.       On the issue of the unfair dismissal complaint, the EAT allowed the appeal. The industrial tribunal had made a mistake in law by considering the reasonableness of Mrs Halstead's conduct, rather than whether it had been reasonably practicable to present the application in time. There was the clearest possible principle of law established by the Court of Appeal in Dedman v British Building and Engineering Appliances Ltd, (1974) 1CR 53, that "the sins of the negligent or incorrect adviser do have to be visited on the applicant for the purposes of considering . . . what is reasonably practicable". The inefficiency of the Advice Centre was not a valid excuse. There was no reason why the application could not have been presented in time.

 

38.       However, considering the discrimination complaint and the efficacy of the time limit escape clause, the EAT said that the phrase "just and equitable" gave the tribunal, following Hutchinson, a very wide discretion. And, looking at the industrial tribunal's reasons, and its summary of evidence, the EAT was not satisfied that the tribunal had reached a perverse conclusion in permitting the complainant to proceed.

 

39.       The Halstead case is somewhat different from that of this claimant, in that she had already lodged a sex discrimination claim, based essentially upon the same alleged facts as those culminating in her resignation. Thus, whilst it was a new development, I am satisfied that it would be harsh and somewhat perverse not to allow the claimant to bring a new claim by way of update.

 

40.       In the terms of the case law, there is in my view a clear potential prejudice to the claimant by refusing permission for the tribunal to determine that aspect of her case. On the other hand, there is no, or no significant, prejudice to the respondents in permitting it. The claimant had made it clear to the respondents at the time of her resignation what the reasons for it were, so there is no element of surprise, and no apparent difficulty in, for example, finding or preserving any evidence which they might adduce to counter such an argument.

 

41.       In the event that the tribunal ultimately adjudicates in the claimant's favour in the initial claim, it otherwise would be entitled to include reference to the fact that the claimant lost her job as a result as an important element of damages. It would in my view be artificial in the extreme if that tribunal were to be prevented from such a consideration, not least because, in the terms of Article 8 (2) (b) of the 1976 Order, such conduct by an employer is in itself unlawful.

 

42.       I am mindful also of the fact that the claim was late by only three days, and was lodged on the same day as it became apparent to the claimant's legal advisers that it ought to have been lodged as a separate claim. This reinforces my view that the respondents have not been prejudiced in any material way.

 

43.       The tribunal there orders that, in all the circumstances of this case, the claim for sex discrimination can properly be entertained by the tribunal.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 15 September 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: