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Docherty v NI Forces Youth & Community Servces & Ors (Preliminary Hearing) [2003] NIIT 03150_00 (10 October 2003)

INDUSTRIAL TRIBUNALS

CASE REF: 03150/00

APPLICANT: H M Ralph Docherty

RESPONDENTS: 1. NI Forces Youth & Community Service

2. RYCWS

3. Ministry of Defence

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that the application was not presented within the specified time limits. In the circumstances of the case it is not just and equitable for the tribunal to consider this complaint. The application in respect of gender discrimination is therefore dismissed. The tribunal orders that the applicant pay to the respondents the sum of £100.00 in respect of costs.

Appearances:

The applicant did not attend and was not represented.

The respondents were represented by Ms N Murnaghan, Barrister-at-Law, instructed by the Crown Solicitors Office.

1. By Originating Application submitted on 24 November 2000, the applicant alleged discrimination on grounds of disability and gender and constructive dismissal. The application in respect of disability discrimination was struck out by the tribunal on 11 April 2003. This hearing relates to the sex discrimination application and was listed to deal with the following issues:-

"(i) Was the application presented within the specified time limit.

(ii) If not, is it just and equitable, in all the circumstances of the case, for an industrial tribunal to consider this complaint despite the fact that it is out of time"?

2. Ms Murnaghan argued that although the question of sex discrimination was raised at paragraph 11 of the Originating Application, paragraph 13 which deals with the substance of the complaint refers only to the Disability Discrimination Act and makes no reference to sex discrimination. Ms Murnaghan referred to replies to an order for further particulars in which the applicant was asked to specify her claim in respect of gender discrimination. Ms Murnaghan handed in a copy of replies to that order which referred to sexist language allegedly used by the applicant's head of service during her employment. Ms Murnaghan stated that the applicant last attended work on 17 July 2000 and tendered her resignation on 28 July 2000. It was therefore clear that the incidents pre-dated that time.
3. Ms Murnaghan advised the tribunal that the applicant had not at any stage given an explanation for the delay in presenting her Originating Application. Ms Murnaghan further stated that the applicant's solicitor had been contacted twice by letter advising them that an order for costs would be sought against the applicant. No response had been received either from the solicitors or from the applicant.
4. The tribunal considered the contents of the Originating Application in the absence of the applicant. We found that the Originating Application was not presented within the specified time limits in view of the applicant's resignation on 28 July 2000.
5. The tribunal having found that the Originating Application to have been submitted outside the relevant time limit considered whether it was just and equitable to extend the time for presenting the claim. The tribunal had no evidence before it from the applicant to explain why her application was late and none was apparent from the Originating Application itself. In view of this, the tribunal decided that it was not just and equitable to extend the time limit for presenting the claim and the application for the sex discrimination aspect of the case is therefore dismissed. All discrimination claims are therefore now dismissed and only a claim of constructive dismissal remains outstanding.
6. The tribunal considered Ms Murnaghan's application for costs in view of the manner in which this matter had been conducted by the applicant. We took into account the fact that the applicant had failed to reply to orders of the tribunal and failed to reply to correspondence from the respondents' representative. We noted that the applicant had been put on notice on 1 April 2002 through her solicitor that a costs application would be made but had made no reply. The respondents' representative has had no recent contact from the applicant and we also took into account the fact that the applicant failed to attend this hearing. In respect of the applicant's ability to pay an order for costs, Ms Murnaghan informed us that the applicant is a masters graduate with an impressive CV. The tribunal concluded that this was an appropriate case for an order for costs to be made and ordered that the applicant pay to the respondents the sum of £100.00.

Chairman:

Date and place of hearing: 13 October 2003, Limavady.

Date decision recorded in register and issued to parties: