FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   130/01 FET
1392/01

APPLICANT:		Christine Convery

RESPONDENT:		Ulster Weavers Apparel Ltd

DECISION

The unanimous decision of the Tribunal is that:-

(i)	in relation to a complaint by the applicant that she suffered discrimination on the ground of her religious belief, that it would be just and equitable to extend the time for the presentation of her complaint; and

(ii)	in relation to a complaint of constructive dismissal, the Tribunal had jurisdiction to entertain the applicant’s complaint in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting her claim.
Appearances:
The applicant was represented by Mr D Dunlop, Barrister-at-Law, instructed by Wilson Nesbitt, Solicitors.
The respondent was represented by Ms S Bradley, Barrister-at-Law, instructed by Jones & Cassidy, Solicitors.

1.	(a)	The Tribunal considers that reasons given in summary form would not adequately explain the grounds for its decision.  Consequently these reasons are given in extended form.	
			
	(b)	At the commencement of the proceedings, the title of the respondent was amended, by consent of the parties, to that now shown to reflect the fact that it was a limited liability company.	
			
2.	(a)	The applicant, by an originating application, presented to the Tribunal on 16 February 2001, alleged that she had been unfairly (constructively) dismissed, and discriminated against on the ground of her religious belief, by the respondent company.	
			
	(b)	The matter had been listed for the substantive hearing of the applications, but on the morning of the hearing, the respondent’s Counsel took certain preliminary points.  The issues for the Tribunal were as follows:-	

(i)	whether the Tribunal had jurisdiction to entertain the applicant’s complaint of unfair dismissal, in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting her claim.

It was argued by the respondent’s Counsel that the time limit for constructive dismissal ran from the date of the alleged repudiatory breach, ie from 14 September 2000, notwithstanding that the applicant continued to work for the respondent company until 17 November 2000.

(Initially there had also been a dispute between the parties as to the last day on which the applicant had worked for the respondent company, but this was resolved on the second day of the hearing, when the latter, on checking records, accepted that the applicant’s last day at work had been 17 November 2000);

(ii)	in relation to the applicant’s complaint that she had been discriminated against on the ground of her religious belief (which was conceded by the applicant’s Counsel to be out of time) whether it was just and equitable, in all the circumstances of the case, for the Tribunal to consider this complaint despite the fact that it was out of time?

	(b)	In order to determine these issues, the Tribunal heard evidence from the applicant, Ms Convery, and from Mr Desi Henderson, a full-time official of her trade union, and from Mr Alan Morrow, the respondent company’s factory manager in Armagh.

It also had regard to a considerable amount of documentary evidence submitted by the parties, and to the oral and written submissions of Counsel.

The Tribunal finds the facts set out in the following paragraphs proved to its satisfaction on the balance of probabilities.	
			
3.	(i)	The applicant started work with the respondent company as a trainee machinist on or around 17 January 1987.

She continued to work for them in the capacity of a machinist until 17 November 2000, which was her last day of employment.  Her work record was satisfactory and it is clear to the Tribunal that she was a conscientious and diligent employee.	
			
	(ii)	In early 2000, consultation began between management and staff about changes to shift patterns.  Because of a requirement for additional weaving capacity at the Armagh factory, it was proposed to change to a three shift pattern commencing 19 November 2000.  This proposal was very unpopular with staff, who had hitherto worked a double day shift.

The applicant, in common with other employees, would be required to work the new shift patterns.  In the event that she decided to work on the rotating 3-shift basis, she had to inform Alan Morrow, the factory manager, by Friday 15 September 2000.  If she did so, she would be issued with a new contract of employment.  Otherwise her position as a weaver on the double day shift would become redundant on 17 November 2000.

The proposed new shift patterns did not come into effect until Sunday 19 November 2000, when new contracts of employment were issued.	
			
	(iii)	The applicant’s attitude to the new shift patterns was that she was not happy with them for personal reasons.  Indeed, at an interview on 1 June 2000, she had indicated to management that she considered redundancy would be a more suitable option for her.  She did, however, need to think about it, and up until September 2000 she had not communicated any view to management, and in particular, had not indicated that she was leaving her job.	
			
	(iv)	In the period from 11 – 14 September 2000, the factory was closed.  On her return to work on 14 September 2000 the applicant became aware of the appointment of Gloria Dunn, a Protestant, to the position of temporary charge hand.  She had been appointed to that post by Mr Morrow, the factory manager.  Mr Morrow considered that it was necessary to make such an appointment on a temporary basis until the company was in a position to determine its future structure, and the appropriateness or otherwise of having such a post.	
			
	(v)	The applicant at the time of Ms Dunn’s appointment had worked at the factory for a period in excess of 13 years.  She felt that she was better qualified for the post.  According to her, Ms Dunn’s promotion was indicative of the way Roman Catholics were treated at the plant.	
			
	(vi)	The applicant felt that she had been discriminated against because of her religion, and at that stage, decided that she would work until 17 November 2000 (the date of proposed redundancy for those who did not accept the new shift pattern) and then leave the company.
By 15 September 2000 she had still not told Mr Morrow what her intentions were.  Towards the end of September, she discussed matters with Mr Henderson, her union representative.  He told her to invoke the company’s grievance procedure.  At that stage he did not advise her to bring a claim before a Tribunal.	
			
4.	(i)	The applicant commenced her grievance procedure on 3 October 2000.  On 9 October 2000 the applicant and Mr Henderson, met with Zoe McKane, the Human Resources Manager, and Mr Morrow.  It was indicated that the applicant would stay on with the company, but only if the conditions were right.

Mr Morrow attempted to explain the situation in an effort to satisfy the applicant as to what had happened.

However, the applicant was not satisfied and it was indicated that she ‘had the view she could claim for discrimination’.	
			
	(ii)	The grievance procedure progressed through further stages, though the company assumed that she would be leaving on 17 November 2000, because she had not informed them of her intention to work the new shift pattern.  This is clear from a letter dated 18 October 2000 from Zoe McKane to the applicant.	
			
	(iii)	In October 2000, the applicant was off work for about a week suffering from stress.  She was back at work in the week beginning 23 October 2000.	
			
	(iv)	On 30 October 2000, the applicant and Mr Henderson went through a further stage of the grievance procedure with Zoe McKane, and Peter Oliver-Kelly, a member of Senior Management.

The applicant stated at this meeting that she felt that she had been unfairly treated on account of her religion and indicated that she had told Alan Morrow she would leave on 17 November 2000 (ie the date redundancy was to have effect).	
			
	(v)	There was a discussion about the possibility of her staying on.  It was put to her by management would she stay if it were accepted she had a genuine grievance, was given an apology, and offered promotion?  She said that it was “hard to answer”.  Her attitude appeared ambivalent and not totally clear, and the employers continued to work on the assumption that she would be there until at least 17 November 2000.  

The applicant, herself, though she hoped the procedure would lead to a resolution of her grievance with the company, did not at that time give any impression she would be able to stay on beyond 17 November 2000.	
			
	(vi)	There was a further meeting between Ms Convery, Mr Henderson, Ms McKane and Mr Oliver-Kelly on 10 November 2000.  At this meeting company representatives handed over a letter from Mr Oliver-Kelly giving reasons for the appointment of Ms Dunn and rejecting the applicant’s allegation that the decision was discriminatory and based on religion.  It was indicated that the charge hand post to which Ms Dunn had been appointed on a temporary basis would now be advertised, and that if the applicant stayed with the company, she would be able to apply for it with other eligible employees in line with normal procedures.

However, the applicant did not feel that the company had dealt adequately with her grievance, and by this stage (ie 10 November 2000) she had clearly made up her mind that she was leaving the company.	
			
	(vii)	The applicant left her employment on 17 November 2000, and it is clear that the employers continued to operate on the assumption that she would leave on that date.

Up until she left she had the option of changing her mind at any time.  The date of 15 September 2000 – laid down as the date by which the applicant was to communicate her intention to management – was not cast in tablets of stone.  It was accepted by management that there was a live issue, and that the company should seek to do something about it.	
			
	(viii)	After the meeting on 10 November 2000, it was also clear to Mr Henderson that the grievance procedure had not resolved the matter.  He was subsequently aware that she had left work on 17 November 2000, and around the beginning of December 2000 he advised the applicant of her rights under employment legislation and of the applicable time limits.

The applicant subsequently approached him around the middle of February 2001, when her application forms were completed and faxed to the Tribunal on 16 February 2001 because of the perceived urgency of the matter.	
			
5.	(i)	Mr Henderson had, of course, been involved with the applicant’s grievance with the company from the end of September 2000, and he knew the nature of her complaint.

At a meeting on 9 October 2000 with management, a reference had been made to the possibility of the applicant bringing a claim for religious discrimination.  At this stage, Mr Henderson was aware of the potential for a subsequent claim to be made by the applicant, and as an experienced trade union official he had a general awareness of time limits.  

He had considerable experience in relation to employment claims, although he would probably have dealt only with two discrimination claims in the 10 years he had been in post.	
			
	(ii)	Mr Henderson accepted that as a full-time union official, he had access to legal advice from the union’s Solicitors.

However, his attitude was that he wanted the grievance procedure to run its course, and he was very reluctant about going in ‘head first’, as he termed it, in a discrimination case.  This was for the understandable reason although there was an issue between Ms Convery and the employer, the promoted candidate, Ms Dunn, was also a union member.	
			
	(iii)	Up until 10 November 2000, when the applicant’s grievance was rejected, he honestly believed that there was a possibility of the applicant’s grievance being resolved.

We find that this belief on the part of Mr Henderson was a reasonable one, and is supported by the attitude of, and comments by, management in the minutes of the grievance procedure meetings.	
			
	(iv)	Mr Henderson’s view was that the religious discrimination and constructive dismissal claims were part and parcel of the one claim and his view, which he honestly held, was that time began to run on 17 November 2000.  While this was a mistaken view, it was an understandable one.	
			
6.	(i)	As far as the applicant’s claim in respect of alleged discrimination on the ground of religion is concerned, the complaint is of a single discriminatory act, ie the appointment of Gloria Dunn, a Protestant, to the position of temporary charge hand on 14 September 2000.  It is accepted by both parties that as far as the claim for religious discrimination is concerned, time runs from that date, and the applicant’s complaint is out of time.  The issue is therefore whether it is just and equitable to do extend the time limit.	
			
	(ii)	The starting point is that time limits are there for a purpose.

If they are not enforced they become meaningless.  However, as against this, it is clear that the ‘just and equitable’ rule is wider than the ‘reasonably practicable’ rule found elsewhere in employment law (see Mills & Anor  v  Marshall [1998] IRLR 494 EAT).	
			
	(iii)	In deciding whether or not to extend time, in respect of the applicant’s complaint of unlawful discrimination, we have had regard to the following matters which we consider relevant:-	

			(a)	The length of the delay and the prejudice to the parties

There was a delay of two months.  This was not insignificant.  However, we do not consider that any party was prejudiced by the delay.

From the documents we have seen in the course of the preliminary hearing (eg concerning minutes of meetings) it is clear that the issues between the parties were to a large extent clarified during the grievance procedure which was followed.  Consequently, we consider that a fair trial of this matter is possible.

(b)	While the applicant did not herself act promptly once her employment had been terminated, we accept that she had no knowledge of the relevant time limits, and relied entirely on Mr Henderson for advice.

He awaited the outcome of the internal grievance procedure before advising the applicant to issue proceedings.  While Courts and Tribunals have on the whole been reluctant to extend the time limit in discrimination cases when delay was caused in such circumstances. (see  Apelogun-Gabriels  v  London Borough of Lambeth [2002] ICR 713) we consider that in the circumstances of this case, Mr Henderson acted reasonably in not advising the institution of proceedings while the internal grievance procedure was taking its course.  He believed that it might be possible to reach a resolution through the grievance procedure, and if that happened, there was the further likelihood that the applicant would remain in employment with the company, and not leave on 17 November 2000.

When it became clear that the matter could not be resolved, he acted promptly in advising the applicant to institute proceedings.

	(iv)	We therefore consider, having regard to all the facts and circumstances of this case, that it is just and equitable to extend the time for presenting the applicant’s complaint of religious discrimination.	
			
7.	(i)	As far as the applicant’s complaint of unfair (constructive) dismissal is concerned, Mr Dunlop BL, for the applicant, contended that the application had been lodged in time, within three months of the effective date of termination of her employment (the ‘EDT’).

The EDT was, according to the applicant, the day on which she actually left work, ie 17 November 2000.  Consequently, the unfair dismissal proceedings had been brought in time.	
			
	(ii)	Ms Bradley BL, for the respondent, argued that it was the appointment of Gloria Dunn, which the applicant became aware of on 14 September 2000, coupled with the failure of the respondent to uphold her grievance, which caused her to leave.  This was a case of discriminatory constructive dismissal, where the repudiatory breach had occurred on 14 September 2000 when the applicant formed the clear intention of terminating her employment by reason of the alleged discriminatory acts of the employer.  The applicant had communicated her intention of leaving to the respondent company on a number of occasions prior to the effective date of termination of 17 November 2000.	
			
	(iii)	It is contended on the part of the respondent company that an originating application for discriminatory constructive dismissal runs from the date of the breach of contract, not the termination of employment.  In support of that contention the respondent relied upon the decision of Commissioner of Police for the Metropolis  v  Harley [2001] IRLR 263.

In that case the principal issue was whether the phrase ‘by dismissing him’ in Section 4(2)(d) of the Disability Discrimination Act 1995 included constructive dismissal.  In that case, the applicant had not pleaded her case under separate heads of discrimination and constructive dismissal as has the applicant in the case before us.	
			
	(iv)	The tribunal considers that the effect of Harley is to lead to different rules for ordinary constructive dismissal and discriminatory constructive dismissal, and that it would be more appropriate to follow the decision of the Employment Appeal Tribunal in Derby Specialist Fabrications Ltd  v  Burton [2001] IRL 69 where it was held in a discriminatory constructive dismissal, that the time limit for presenting a complaint runs from the date of the claimant’s termination of employment.

The tribunal has also had regard to Cast  v  Croydon College [1998] IRLR 318, where the claimant based her claim on alleged sex discrimination and constructive dismissal, and the case seems to have proceeded on the basis that the latter complaint was within time.	

8.	If the respondent’s contention is correct, the time for instituting proceedings began some nine weeks before the applicant’s employment actually terminated.

At the time of the alleged act of discrimination the respondent had been informed, by letter of 23 August 2000, that her position as a weaver would be redundant on 17 November 2000 (unless she indicated that she was prepared to work the new shift pattern).

She continued to work from 14 September 2000 to 17 November 2000 on exactly the same terms and conditions as she had worked prior to the former date.  The respondent continued to pay her, deduct income tax, and any National Insurance contributions.

There is no suggestion that she did this under a new or temporary contract of employment to take her up to 17 November 2000.  Both she and the employers proceeded on the assumption that she would continue to work up until 17 November 2000, and this is in fact what she did (bar a period of one week when she was off with stress).

9.	In these circumstances the Tribunal is satisfied that the applicant’s effective date of termination of her employment was 17 November 2000.  Consequently, her originating application was presented in time.  The matter will now proceed to a full hearing.  In relation to the allegation of constructive dismissal, it will be for the applicant to show at that hearing that she did not accept or waive the employer’s alleged breach of contract by remaining in employment after the alleged discriminatory act of the respondent on 14 September 2000.

Chairman:

Date and place of hearing:	12 – 13 August 2003, Belfast

Date decision recorded in register and issued to parties: