Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 5115/17

 

CLAIMANT: Brian McKeever

 

 

RESPONDENT: North West Regional College

 

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that the claimant's first claim (age discrimination in respect of the amount of compensation paid to the claimant on the termination of his employment under the voluntary exit scheme) has been lodged outside the statutory time-limit of three months and that that time-limit should not be extended in the circumstances of the case. That claim is therefore dismissed for want of jurisdiction.

 

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Employment Judge Gamble

 

 

Appearances:

 

The claimant represented himself.

 

The respondent was represented by Mr N Phillips of Counsel, instructed by Worthingtons Solicitors.

 

 

Background

 

1.             The claimant was employed by the respondent from 4 October 1984 until the termination of his employment under a voluntary exit scheme (VES scheme) on 31 January 2017.

 

2.             The claimant brought a complaint to the Industrial Tribunal on 5 September 2017 alleging that he had been subject to age discrimination. In his claim form at section 7.2 he stated that the matter he was complaining about happened on 27 August 2017 and was ongoing.

 

3.             The details of his claim were as follows:

 

"I left work by a voluntary exit scheme at 31st Jan 2017. The condition set by the employer is that I cannot reapply for work at the college I left until 21 months have passed. My compensation was six months' salary as I was over 60 yrs old. Had I been 21 months or more below 60, I would have received 21 months' salary compensation. I feel I have been discriminated on age. Along with this I believe I have been further discriminated as follows. A younger colleague leaving using the VES would have to wait 21 months before being able to reapply for work at the college, but me who is over 60 also has to be 21 months even though I only get 6 months' salary compensation. I am aloud (sic) however to work at any other college in NI. After six months, I am geographically being discriminated as well as I am prevented to work at the closest college to me but can work at any college further away after six months."

 

In the section for other information, the claimant stated:

 

"I have applied to work part-time at the college I left on the 27/08/2017 which is more than six months since I left. I received an email the next day saying that I would have to wait 21 months before re-applying to the college."

 

4.             During the case management process, it was determined that the claimant's claims could be categorised as follows:-

 

a.             a claim of direct age discrimination relating to the calculation of the benefits paid to him on termination under the relevant voluntary exit scheme; and

 

b.             a claim of indirect age discrimination relating to the terms of the voluntary exit scheme which prevented the claimant being considered for reemployment until a period of 21 months had elapsed from the date of his termination.

 

5.             At a Case management discussion held on 19 September 2018, it was directed that a Pre-Hearing Review would take place to consider and determine the following issues in relation to the claimant's complaint of alleged age discrimination in respect of the voluntary exit scheme compensation (hereinafter referred to as the "the first claim"):

 

(i)             whether the alleged act of age discrimination occurred when the claimant accepted the respondent's offer under the voluntary exit scheme on 31 May 2016. If so, whether the claim has been presented outside the statutory time-limit. If so, whether the statutory time limit should be extended?

 

(ii)           whether the alleged act of age discrimination occurred when the claimant left the respondent on 31 January 2017. If so, whether the claim has been presented outside the statutory time-limit. If so, whether the statutory time limit should be extended?

 

(iii)          whether the alleged act of age discrimination was a continuing act ending on 28 August 2017 when the claimant was informed that he had to wait 21 months before applying for further employment at the respondent. If so, the claim is in time.

 

6.             When the claim was case managed on 19 September 2018, the claimant was ordered to provide any documentation on which he intended to rely to the respondent by 2 October 2018. At a further Case Management Discussion held on 8 October 2018, the claimant asserted that he had not realised that he could lodge medical evidence. At this time, it was agreed that the Pre-Hearing Review would proceed as scheduled and that the claimant could provide medical evidence after the completion of the hearing, subject to the respondent's right either to recall the claimant or to make further written submissions.

 

Procedure

 

7.             The claimant gave oral evidence in chief and was cross examined by the respondent's counsel. The respondent did not call any witnesses.

 

8.             The claimant was required to satisfy the main burden of proof in relation to the time issue. He was asked to explain why he maintained the first claim was in time; and in the event that the tribunal was not persuaded that the first claim was in time to state why he felt the tribunal should be persuaded that it was just and equitable in all of the circumstances to extend time.

 

9.             The respondent's representative had provided the claimant with an extract from Harvey on Industrial Relations and Employment Law from paragraph 277 to 285 on the morning of the hearing. He had also provided the claimant with a copy of regulation 48 of the Employment Equality (Age) Regulations (Northern Ireland) 2006.

 

10.          The claimant and the respondent's representative gave closing submissions.

 

11.          The claimant lodged vouching medical evidence from the claimant on 15 November 2018. The respondent elected to provide submissions on this material, which were received on 12 December 2018.

 

12.          The claimant replied to these submissions by email dated 13 December 2018.

 

Relevant Law

 

13.          The Employment Equality (Age) Regulations (Northern Ireland) 2006

 

"Period within which proceedings to be brought

 

48.-”(1) An industrial tribunal shall not consider a complaint under regulation 41 (jurisdiction of industrial tribunals) unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done

 

...

 

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

 

(5) For the purposes of this regulation and regulation 46 (help for persons in obtaining information etc)-”

 

...

 

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

 

..."

 

Relevant Findings of fact as to whether the claimant's first claim of Alleged Direct Disability Discrimination was presented within the statutory time limit

 

14.          The claimant expressed interest in the voluntary exit scheme through an expression of interest form submitted on 29 April 2016. Kate Duffy, Director of Human Resources and Learner Services within the respondent organisation, wrote to the claimant on 23 May 2016 making an offer under the voluntary exit scheme (VES). The offer provided that his compensation payment entitlement would be six months' salary. This was consistent with the terms of the scheme. Paragraph 12 of the scheme provided that " the compensation payment is a maximum of six months' pay of members over the normal scheme pension age. Further guidance is available in the FAQs."

 

15.          The claimant entered into email correspondence with the respondent seeking clarification of the operation of the scheme in relation to the calculation of the compensation.

 

16.          Both the expression of an interest in voluntary exit pro forma and the response form contained the following terms:

 

"I understand that if I am made an offer of voluntary exit and should I accept that binding offer, then I agree not to seek re-engagement or re-employment for a period of 21 months from the date of exit in:

 

a.             any capacity from the college which I exited; and

 

b.             in a permanent capacity, in another Northern Ireland Further Education College.

 

I also agree that if I am re-employed re-engaged in another Northern Ireland Further Education College, in a non-permanent capacity within a period shorter than the notional period of compensation, I shall repay an element of the compensation payment. This repayment will be pro-rata based on the difference between the notional period of compensation, the pay differential and the gap between both employments." (Expression of interest)

 

"I wish to accept the offer of voluntary exit on the terms offered and accept:

 

- my leaving date is 31 January 2017 and that my notice period commenced from the closing date for returning the expression of interest pro-forma, i.e. 29 of April 2016.

 

- this is a binding acceptance on my part and I am unable to withdraw my acceptance at a future date.

 

- that I not seek re-engagement or re-employment for a period of 21 months from the date of exit in:

 

a.             any capacity from the college which I exited; and

 

b.             in a permanent capacity, in another Northern Ireland Further Education College.

 

I also agree that if I am re-employed re-engaged in another Northern Ireland Further Education College, in a non-permanent capacity within a period shorter than the notional period of compensation, I shall repay an element of the compensation payment. This repayment will be pro-rata based on the difference between the notional period of compensation, the pay differential and the gap between both employments." (Response form)

 

17.          On 31 May 2016, which was the same day as the claimant accepted the offer made under the VES scheme, the claimant initiated a grievance alleging that he had suffered as a result 'of what is called legally a "negligent misstatement "'. The claimant alleged that he had been given incorrect information regarding an earlier tranche of the voluntary exit scheme and that if he had been able to apply at that time his compensation payment would have been calculated on his full salary at that time. He alleged that in the intervening period he had taken phased retirement which had resulted in the compensation payment being based upon his reduced salary at the time when the offer was made and accepted.

 

18.          The claimant met again with Kate Duffy on 13 June 2016 and following this meeting a resolution was achieved which resulted in the claimant withdrawing his grievance. The claimant's phased retirement had been granted for a period of one year initially and was due to end on 31 December 2016. It was agreed that the claimant would revert to his full time hours on 1 January 2017, and that the compensation payment due under the voluntary exit scheme would be recalculated based on the claimant working full time hours. As a result the claimant's compensation payment estimate increased from £13,780.50 to £18,373.98. The claimant expressed his thanks to Kate Duffy for her guidance and help throughout the process.

 

19.          The claimant's employment with the respondent terminated by agreement on 31 January 2017 and he was paid a tax-free compensation payment of £18,374.00 with his final pay.

 

20.          On 27 July 2017 the claimant emailed North Western Regional College advising that he had left the college at the end of January under the voluntary exit scheme terms and that he was now able to work at any other college given that the six months embargo that was related to his compensation had passed. His email asserted that the ongoing 21 month embargo was unfair to him he indicated that he hoped to apply before 11 August 2017, which was the closing date on an advert by the respondent, which had come to his attention. On 10 August the claimant received a response advising that he was subject to the terms of the VES scheme under which he had left the college. On 17 August 2017 the claimant contacted Kate Duffy stating that he believed that he was subject to age discrimination and that he was being prevented from applying for a post at the college because of his age. He received a reply from Kate Radford advising him that he was subject to and bound by the terms of the VES scheme which he had accepted. He was advised that it was not possible to progress his application due to the terms of the VES scheme and that he would not be eligible to re-apply to the college until 21 months had elapsed from the date he had left the college.

 

21.          Following this the claimant issued his proceedings to the Industrial Tribunal on 5 September 2017.

 

The Parties' submissions

 

22.          The claimant contended that, as the calculation of his compensation and the refusal to consider him for reemployment arose from the implementation of the same policy, I should treat the two claims as a single continuing act which was continuing at the time he brought his claim.

 

23.          The claimant contended that the relevant time limit would continue to subsist in respect of the first claim until 31 January 2019, being 24 months from his termination date.

 

24.          The respondent's representative contended that the payment of the compensation and the refusal to re-employ are two separate and discrete acts.

 

25.          The respondent's representative submitted that in respect of the first claim time should run from a much earlier date, namely 31 March 2016, when he contended that the claimant had the requisite knowledge of the alleged first claim of discrimination and could have brought a claim.

 

The tribunal's conclusions

 

26.          I do not accept the claimant's argument that his two causes of action constitute a single continuing act. The first claim, relating to the calculation of the compensation payment, is framed as a direct discrimination claim. The second claim, which relates to the ongoing refusal to consider the claimant for reemployment, is an indirect discrimination claim. For this reason these two different causes of age discrimination are not a single continuing act. Further, I find that the payment of his VES compensation was a single discrete act and was in no sense continuing after that payment had been made. In Sougrin v Haringey Health Authority [1992] IRLR 416, [1992] ICR 650 the tribunal found that the employer's decision to pay the appellant nurse less than a white colleague following a regrading exercise was not a "continuing act" , even though the lower pay bracket continued to subsist. On the facts of the claimant's case, there can be no other conclusion than that payment a one off compensation payment is a single discrete act, done on 31 January 2017.

 

27.          I find that the claimant has failed to discharge the burden which was on him to prove that the two alleged incidents of discrimination are linked to one another and that they are evidence of an act extending over a period. As observed in Hendricks v Metropolitan Commissioner [2003] 1 All ER 654 the question is whether there is '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.

 

28.          Accordingly, I find that the payment of the compensation under the voluntary exit scheme was a one-off act which occurred with finality on 31 January 2017 and did not form part of a continuing act.

 

29.          I accept the respondent's submissions that the claimant had acquired knowledge of the alleged discriminatory state of affairs regarding payment of the compensation under the VES policy by 31 May 2016. Accordingly, I find that his first claim relating to the amount of compensation payable under the voluntary exit scheme crystallised on 31 May 2016 and could have been brought at any time after this date until the end of the relevant statutory time limit. I make this finding as, at this date, the claimant had entered into a binding arrangement to leave the service and was fully aware of the different arrangements being used to calculate the compensation for those who were over 60 and those who were under 60. He was, at this time and in the period following, in a position to lodge a complaint of less favourable treatment under regulation 3(1)(a) of the 2006 regulations.

 

30.          The period between the claimant accepting the offer of voluntary severance and his actual termination was an ongoing alleged discriminatory state of affairs. However, this came to a definite and final conclusion upon the termination of his employment and the payment of the compensation payment on 31 January 2017. The statutory time-limit therefore expired at the very latest time on 30 April 2017. The claimant's claim form was therefore presented some four months and five days outside the statutory time limit in respect of the first claim. I do not accept the claimant's contention that he was able to bring proceedings in relation to the first claim at any time up to 24 months after the termination of his employment, being the period of the 21 month embargo on re-employment, together with the statutory three month time limit.

 

Whether Just and Equitable to Extend Time

 

31.          The power of the tribunal to grant an extension where it is considered just and equitable to do so provides a wide discretion, wider than that available in respect of other claims where the 'not reasonably practicable formula' is used. As submitted by the respondent's representative and as set out in Harvey Division PI paragraph 277, it is for the claimant to convince the tribunal that it is just and equitable to extend time and that the exercise of discretion is the exception rather than the rule ( Robertson v Bexley Community Centre [2003] EWCA Civ 576, [2003] IRLR 434, at para 25, per Auld LJ ); Department of Constitutional Affairs v Jones [2007] EWCA Civ 894, [2008] IRLR 128, at paras 14-15, per Pill LJ ).

 

32.          The respondent's representative referred to the so-called Keeble checklist. In considering an extension the court or tribunal can consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular:

 

( a) the length of 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 requests for information;

 

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

 

(e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action. ( British Coal Corp'n v Keeble [1997] IRLR 336 ) .

 

33.          There is no legal requirement on the tribunal to go through such a list in every case provided that no significant factor has been left out from consideration in the exercise of the discretion.

 

34.          The claimant claimed that he had not presented the claim within the relevant statutory time limit for the following reasons:

 

a.             his wife had been concerned about a possible relapse of an earlier condition in the period April to May 2016;

 

b.             his wife's health deteriorated from in or around July 2016, with her becoming very unwell in December 2016 and taking ill-health retirement from March 2017;

 

c.             he and his wife care for their son who suffers from an ongoing condition and from December 2016 onwards, given his wife's ill-health, acting as the sole carer for his son with the added burden of caring for his wife;

 

d.             he did not wish to raise a grievance or bring proceedings before his employment terminated, as he was concerned that the offer of voluntary severance would be withdrawn;

 

e.             his caring responsibilities had had an effect on his own mental health and that in May 2017 he had sought advice and help from his own GP; and

 

f.              he had no knowledge of the time limits of the tribunal.

 

35.          The claimant reported that he had experienced an improvement in his health by July 2017 to the extent that he felt "reasonably ok" and had felt ready to "challenge the scheme".

 

36.          Following the hearing, the claimant lodged vouching medical evidence consisting of the following:

 

a.             Letter dated 15 November 2018 from Dr J O'Donnell, the claimant's General Practitioner. This letter confirmed that the claimant and his wife are patients, that the claimant had suffered from long term anxiety and depression symptoms for which he had been on treatment "of one sort or another" for more than 20 years, that he attended the surgery in May 2016 with a regard to a deterioration in his condition, which had been occurring over the previous number of months. The GP's letter confirmed that around this time the claimant's wife's condition became severe and required "fairly intensive therapy". The GP's letter further confirmed that in June 2016 the claimant was diagnosed with anaemia, and the required investigation and treatment for this was a "significant worry" for him over most of 2016 and early 2017. These investigations were in addition to a further long term condition of the claimant's which requires surveillance. The GP's letter also confirmed that through 2016 the main burden of care for the claimant's son fell on the claimant.

 

b.             Extracts from the claimant's wife's GP Notes and Records for the period January 2016 to September 2017 (with other historical notes also included). These confirmed that the claimant's wife had had a serious illness previously and was concerned about a possible recurrence in the period from February 2016 to March 2016, when an investigative test was reported as normal. In April 2016, the claimant's wife attended the Out of Hours clinic with further symptoms. She was referred to a dermatologist and a biopsy was reported as normal, allowing her to be discharged in October 2016.

 

The extracts further confirmed that the claimant's wife had other long term issues, with a deterioration evident in May 2016, and a marked deterioration following a change in medication in December 2016. Her condition was reported as improving by 13 January 2017. By 10 May 2017, the claimant's wife's condition was described as "in remission". The notes also referenced the condition of the claimant's son.

 

c.             Extracts from the claimant's GP Notes and Records for the period January 2016 to September 2017 (with other historical notes also included). These confirmed that the claimant reported depression symptoms in May 2016, had an emergency attendance at hospital with chest pain in September 2016, had investigative tests in November 2016 and reported low mood on 25 May 2017.

 

The further extracts make reference to the long term condition which requires surveillance.

37.          When the claimant gave evidence at the Pre-Hearing Review, he made no reference to his own mental health being problematic for upwards of 20 years, nor did he make reference to or rely upon his anaemia or the long term condition which requires surveillance in relation to his application to extend time.

 

38.          In the respondent's written submission, the respondent made the following points in relation to the claimant's wife's medical records:

 

a.             The claimant was in a position to consider and accept the offer of voluntary severance at the end of May 2016, and to raise a grievance on 31 May 2016. Accordingly, the respondent contends that the claimant's home life was not impacting on him to such an extent that he could not address his mind to these things.

 

b.             On 16 June 2016 the claimant retracted his grievance and demonstrated that he was able at that time to give consideration to the interaction of the phased retirement scheme, the VES scheme and the implications for his salary.

 

c.             In October and November 2016 the claimant was in a position to give thought to and reach decisions on returning to full hours to ensure he was on a full salary when his employment was terminated by VES, as demonstrated by his correspondence with the respondent at this time.

 

d.             In December 2016, he was again corresponding with his employer regarding the terms of the VES scheme.

 

e.             The notes record an improvement in the claimant's wife's condition by 13 January 2017, although the condition persisted.

 

f.              The notes record that the claimant's wife was discharged from the external treatment provider on 26 February 2017, although her symptoms persisted.

 

g.             The discharge note of 10 May 2017 (referred to at paragraph 36b above) confirmed no adverse finding at this time, and she was then discharged. The respondent then notes that the claimant did not lodge his claim until September 2017.

 

h.             The respondent asserts that the notes do not confirm that the claimant's wife's conditions required such significant or time consuming care as to have prevented him or inhibited him from lodging his proceedings prior to September 2017.

 

39.          The respondent made the following submissions in relation to the GP's letter dated 15 November 2018:

 

a.             The letter does not actually deal with the issue of whether the claimant was so inhibited by his own or his wife's illness that he could not have lodged a claim to the tribunal.

 

b.             The letter does not explain why if this was the case, the claimant was capable of working and in engaging in the correspondence referred to.

 

40.          The respondent made the following submission in relation to the extracts from the claimant's medical notes and records:

 

a.             The claimant only had two attendances with his GP in this period (25 May 2016 and 10 January 2017) and asserts that this does not support the view that the claimant was a man whose health was inhibiting him from issuing a claim to the tribunal. The respondent references the correspondence entered into with the respondent during this period to support its view that he was entirely capable of bringing the claim.

 

b.             The episode of chest pain in September 2016 did not turn out to be sinister in the end and was confirmed to be epigastric in nature.

 

41.          The respondent concludes:

 

"The medical records submitted do not really advance the claimant's position to any great extent. The respondent refers to the cross examination of the claimant at the PHR and submissions made at that time and the further submissions above. This was a man who was working, engaging regularly in correspondence regarding various topics including a grievance, a phased retirement scheme, VES scheme and the effect of the interaction of these schemes on each other. He was entirely able to give detailed consideration to these matters at the time. The medical records submitted do not change the reality. He could have issued his claim form much sooner, there was nothing stopping him from doing so."

 

42.          The claimant in his email dated 13 December 2018 provided further information regarding the challenges posed by his son's health condition. He stated that:

 

a.             He viewed the VES scheme "as an opportunity to be a full time carer ... with the hope that our home life would improve.

 

b.             I consider dealing with the phase retirement impact on the compensation to be as much that I could tackle at that time as my wife was now unwell and more vulnerable to our son's unpredictable condition and I was now the carer for both.

 

c.             I had not given any thought to taking on a Discrimination case on my own at that time but I did believe the scheme was discriminative.

 

d.             The grievance procedure was an act of frustration in that no one was listening to me but saying that the rules of the VES scheme were being applied, my grievance was with my employer misguiding me earlier and leaving me with £5k less compensation. Along with this I was told by email that no appeal of the VES scheme was possible by the head of HR.

 

e.             The sorting out of my timetable hours later in the semester is not a real issue but run of the mill stuff ...

 

f.              My wife was ill and convalescing ... I was doing all that I was capable of at that time regarding my work/VES ...

 

g.             A GP would not be in a position to comment on and I would not ask them to state that I could or could not be capable of taking on a discrimination case.

 

h.             Like most men I attend my doctor less times than I should. Also I was very depressed and reluctant to ask for help like most men suffering from a mental illness.

 

i.               I was depressed and stressed and this brought on the symptoms of a heart attack. I was anaemic and waiting for a day case procedure to see if I had cancer.

 

j.               I was doing all that I was capable of during that time period. I could not take on a discrimination case, I did not know what was involved, to me at that time it would have seemed like taking on the government as the VES scheme was based on the Civil Service model. I therefore did no research on the matter, I was on my own, no union to give me help and no moneys to employ a Barrister/Solicitor."

 

43.          I find as follows in relation to the factors relied upon by the claimant and set out at paragraph 34 above:-

 

a.             Factor a - the claimant's wife's concern about a possible relapse during the period April to May 2016, as referenced in his oral evidence (or February to March 2016 as referenced in the GP notes) is not a relevant factor in considering whether to extend the time limit in relation to the claimant's failure to present his claim within the statutory time limit. This factor significantly preceded the expiry of the statutory time-limit. Further, the effect on the claimant was not so as to render him incapable of contemplating proceedings as he was able to enter into significant correspondence regarding the VES scheme, as well as raise a grievance at this time.

 

b.             Factors b and c at paragraph 34 above - the GP notes and records do suggest a deterioration in the claimant's wife's health both in May 2016 and in December 2016. However, I am not persuaded that these prevented the claimant from presenting the claim within the statutory time limit or that they support an extension of time. As noted by the respondent in submissions, these factors did not prevent the claimant from entering into correspondence with his employer in December 2016 and the claimant's wife's condition was improving from January 2017 onwards.

 

c.             In further support of this conclusion, I note that the claimant was cross-examined about an email he sent on 11 October 2016. At this time, he sought to defer his leaving date under the voluntary exit scheme to August 2017. When challenged that he had been willing to continue working for the college during the period he was affected by the personal and family reasons set out at b, and c above, he gave evidence that he would have continued working if he had been permitted, as there was a clear financial benefit to him and because teaching was a release to him. In these circumstances, when factors b and c would not, by his own admission, have prevented him from continuing to work through the relevant statutory limitation period, I find that the claimant could have lodged his complaint to the tribunal within the statutory time limit.

 

d.             Factor d does not explain the delay by the claimant in lodging proceedings nor does it support an extension of time. This is because the claimant's alleged reticence in bringing a complaint for fear of jeopardising the agreement for voluntary severance is difficult to reconcile with his earlier conduct. On 31 May 2016, when accepting the offer of voluntary severance, he lodged a grievance with his employer alleging 'negligent misstatement'.

 

e.             Factor e affected the claimant after the expiry of the statutory time limit, and can only serve to explain the ongoing delay between the expiry of the time limit and the date when the claim was actually presented. The claimant appears to have had only two face to face appointments with his GP in the period from January 2016 to September 2017. One appointment was in May 2016, the other was in January 2017. The claimant gave evidence of a deterioration in his own mental health in May 2017, yet the GP notes and records only make reference to telephone contact by the claimant, when he advised his mood was lower following discontinuation of a medication. On this basis, the notes and records furnished do not support he claimant's oral account of such a deterioration in his mental health between May 2017 and July 2017 as to render him incapable of lodging a claim. The claimant gave evidence that he had recovered sufficiently by July 2017 to "test the scheme". Even on his own evidence, there was still a further significant delay between his recovery and the date he brought his proceedings, 5 September 2017.

 

I also find that the initiation of email correspondence by the claimant with the respondent on 27 July 2017 to "test the scheme" is consistent with his entirely misconceived construction of the terms of the voluntary exit scheme. In effect, he chose to read and construe the clear and unambiguous terms of the voluntary exit scheme in a way which is entirely inconsistent with their plain meaning. The claimant, operating under the belief that those rules ought to be construed in accordance with his sense of what was fair, waited until the period of six months had elapsed before promptly and determinedly challenging the 21 month rule. The period of six months, being the time between the termination of his employment and the initiation of his email correspondence with the respondent, represents what he viewed as the appropriate and fair period of embargo.

 

It is difficult to reconcile the claimant's very prompt attempt to challenge the restriction on re-employment with the college on 27 July 2017 with the claimant's evidence that he was distressed, anxious and depressed immediately before this period. It rather appears that he was keeping the relevant dates under close review in accordance with his own construction of the terms of the voluntary exit scheme. I agree with the contention made by the respondent's representative at the Pre-Hearing Review that the claimant was not so inhibited by the other factors he referred to but by his opinion on what ought to be a fair construction of the scheme.

 

f.              Factor f relied on by the claimant does not satisfactorily explain the claimant's delay in presenting his claim, nor serve as a ground for the extension of the time limit. The claimant contended that he had no knowledge of tribunal's time limits. However, the claimant does appear to have been capable, whether on his own behalf or with assistance, of researching the relevant legal position in relation to matters pertaining to him in the past. In that regard, his email of 31 May 2016 to Leo Murphy and Kate Duffy in which he refers to having suffered as a result of 'negligent misstatement' is highly significant.

 

The claimant admitted during cross examination that he did seek advice from his trade union regarding the prospects of successfully challenging the voluntary exit scheme under age discrimination legislation during his employment. The claimant initially admitted but then immediately changed his evidence to a denial that his trade union advised him of the relevant time-limit for bringing proceedings. The possibility of bringing age discrimination proceedings had therefore clearly been within his contemplation for some time before the termination of his employment on 31 January 2017 and well in advance of him actually bringing the proceedings out of time in September 2017.

 

44.          I am satisfied that the primary reason for the delay in lodging the first claim within time was not the factors listed at paragraph 34 above (or indeed any further reason as advanced after the Hearing through the GP's letter, notes and records and the claimant's further written submission), but the claimant's incorrect opinion about the proper construction of the terms of the VES scheme and the time period within which he could challenge it. He had contemplated challenging the scheme during the course of his employment to the extent that he had sought advice from his trade union.

 

45.          Notwithstanding my finding as to the primary reason for the delay in lodging proceedings, it is clear that the claimant, his wife and family have had and continue to have significant challenges to cope with in their lives, and I do not seek to diminish these in the findings set out herein. However, notwithstanding the difficulties which the claimant has been faced with, I am not persuaded that time should be extended for those reasons.

 

46.          In considering the factors included in the Keeble checklist, I note that the delay is for a period of 4 months and 5 days. Whilst I am not concerned that the cogency of evidence surrounding the compensation payable to the claimant is likely to have been affected by the delay, likewise I am not persuaded that this is a good reason for extending time in this case. I further note that the claimant was in full possession of all the material facts regarding the terms of and the operation of the voluntary exit scheme and had sought and was provided with clarification on multiple occasions. He could not be said to have been operating under a disadvantage with regards knowledge in this respect.

 

47.          The claimant in this case cannot be said to have acted promptly as in accordance with my findings above he was in full possession of all the facts which would have enabled him to commence proceedings in respect of his first claim from 31 May 2016.

48.          During his evidence the claimant also contended that I should have regard to the treatment he had been subjected to in assessing whether it was just and equitable to extend the time limit. He pointed to the fact that he had not been well treated and insisted that for 'justice' sake' he deserved to have a go. Having been challenged on the various accommodations that his employer had made for him in relation to the voluntary exit scheme, including allowing his compensation to be based on his later reversion to full time hours, the claimant revised his position. He stated that he wasn't saying that his employer had treated him badly, however he directed my attention to what he contended was his employer's lack of knowledge of the operation of two voluntary exit schemes for those over 60.

 

49.          In accordance with the case of Hutchison v Westward television Ltd [1977] IRLR 69 it is not appropriate for me to try the merits of the claimant's complaint in considering whether to exercise the statutory discretion to extend time.

 

50.          The claimant also contended that extending time was in the public interest/greater good and would serve to act as a protection towards older people's rights. I do not accept this contention.

 

51.          The claimant also requested that I defer consideration of the time point until the main hearing. However, having heard the evidence, I find that the determination of this issue in respect of the first claim gives effect to the overriding objective, is fair and will save expense.

 

52.          Accordingly, I find that the claimant's first claim in respect of alleged age discrimination in respect of the voluntary exit scheme compensation was not brought within the relevant statutory time limit. I am not persuaded that it is just and equitable to extend that time limit. The claimant's first claim is therefore dismissed for want of jurisdiction.

 

 

 

Employment Judge:

 

Date and place of hearing: 9 October 2018, Belfast.

 

Date decision recorded in register and issued to parties: