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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Morrison v Joseph E McKernan McIat & Son [2007] NIIT 137_06 (26 March 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/137_06.html Cite as: [2007] NIIT 137_6, [2007] NIIT 137_06

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 137/06

675/06

CLAIMANT: Caroline Vanessa Morrison

RESPONDENTS: 1. Joseph E McKernan McIat & Son

2. Norman McKernan

3. Quinn Greer

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

1. the claimant's claim of sex discrimination is out of time; and
2. that it would not be just and equitable to extend the time limit

Constitution of Tribunal:

Chairman (Sitting Alone): Ms P Sheils

Appearances:

The claimant was represented by Mr P Moore, as a friend.

The respondents were represented by Mr P Ferrity, Barrister-at-Law, instructed by Anderson Agnew & Company, Solicitors.

Issues

3. It was agreed at the outset of the hearing that the issues for the tribunal were:-

(1) are the complaints of sex discrimination and victimisation out of time; and

(2) if so, would it be just and equitable, in all the circumstances of the case, for the tribunal to consider the complaints of sex discrimination and victimisation despite the fact they were out of time?

4. The claimant's representative indicated that the claimant was withdrawing her complaints of breach of contract, unlawful deduction from wages, and health and safety detriment and therefore no issues would fall to be decided in respect of these.

Sources of evidence

5. The Tribunal heard evidence from the claimant. The Tribunal was also supplied with the claimant's recent medical history, notes and a report. The Tribunal also had sight of the letter from the respondents to the claimant dated 19 December 2005.

Findings of Fact

6. The Tribunal heard representations from both representatives. From the evidence given and supplied to it, the Tribunal found the following relevant facts in relation to the time limit:-

(1) The claimant sustained a head injury at work in June 2005. This required her being hospitalised overnight, but for one night only. After this injury the claimant did not return to work. She did visit the premises some weeks after her injury but this was to ascertain what her sick pay would be and was not to return to her job.

(2) The claimant lodged a claim form with the Office of Industrial Tribunals and Fair Employment Tribunal on 18 January 2006. In her claim form the claimant alleged constructive dismissal, that she had suffered sexual harassment, that the work environment and facilities were inadequate and hazardous, that her employer had taped incidents at work from time to time without her permission and that a demand from her employer for a return of monies he had lent her on foot of an agreement amounted to further harassment of her.

(3) In her claim form, the claimant had indicated that she had been subjected to "usual filthy comments from male members of staff who did this with the full knowledge of the owners of the company". However the claim form went on to state "there was no point in complaining as the owners did not care and wouldn't listen or ignore me".

(4) The claimant borrowed £1,500 from her employers and an arrangement was entered into between them whereby two repayments were to be made, of £750.00 each. The claimant signed two post-dated cheques to cover these amounts. This was before the claimant's accident in June 2005. When the respondents tried to lodge the cheques they were returned to them on the basis that there were insufficient funds to meet the cheques.

(5) The respondents, through their solicitors, wrote to the claimant in December 2005 indicating that this was the case and giving her seven days in which to make payment of the full amount, failing which legal proceedings would be instituted by them against her.

(6) The claimant accepted that this was a financial arrangement that had been entered into between her and her employers. She accepted that she had insufficient money in her account to meet the cheques and the amounts had not been paid back to the respondents. The claimant indicated that the respondents' letter had caused her distress and upset, but the claimant accepted that there was no connection between this letter and their demand for the repayment of the monies and any act of harassment that had occurred to her before she had left work in June 2005.

(7) The claimant indicated that in late 2005 she had taken a personal injury claim against the respondents and that this matter had been resolved. The claimant had been represented by a firm of solicitors but had given her instructions to them and all contact with them before the morning of the court had been by telephone. The claimant did not mention to this firm of solicitors any difficulties she had been experiencing at work in relation to sexual harassment.

(8) The claimant was also going through a difficult divorce in or about June 2005. She was represented by yet another firm of solicitors during these proceedings. The claimant did not mention any difficulty she was experiencing at work to this firm of solicitors either.

(9) In the period between June 2005 and January 2006 the claimant was being treated by her general practitioner for depression. The claimant had suffered depression before 2005 and had received treatment then too.

(10) The claimant indicated that she knew the time limit within which sex discrimination proceedings should be lodged. During the period of June 2005 and before the claimant lodged her claim form in January 2006, the claimant met Mr Patrick Moore who was a friend of her boyfriend. The claimant knew Mr Moore only as her boyfriend's employer and as a man who conducted employment law cases. The claimant indicated that she had not spoken to Mr Moore about her difficulties at work in the period between June 2005 and when she lodged her claim because she found it too embarrassing to do so.

Submissions of the parties

The Submissions on Behalf of the Claimant

7. The claimant's representative, Mr Patrick Moore, indicated that the claimant believed that the letter demanding the repayment of monies was the final act in a series of continuing acts of sex discrimination.
8. Mr Moore submitted that the Tribunal should take account of those factors for guidance as set out in Harvey in the exercise of its discretion to extend time on the grounds that it would be just and equitable to do so. Mr Moore submitted that a number of these factors were relevant in the instant case and in particular that it would be considerably more prejudicial to the claimant than to the respondents if the Tribunal did not exercise its discretion in this case as the sex discrimination claim could not be progressed further and the claimant had no other remedy.
9. Mr Moore also contended that the Tribunal should consider the conduct of the respondents subsequent to the act, up to the date of the lodging of the claim. Mr Moore stressed that the claimant had suffered harassment and distress in receiving the letter demanding the payment of monies in December, "in the mouth of Christmas".
10. Mr Moore also submitted that there would be less prejudice to the respondents in this case than to the claimant on the basis that most of the evidence in respect of the constructive dismissal claim, about which no time issue exists and which will be heard in due course, would be identical evidence in relation to the sex discrimination claim. The respondents would suffer little or no prejudice in having to defend an additional sex discrimination aspect to that claim.

The Submissions on behalf of the Respondents

11. On behalf of the respondents, Mr Ferrity submitted that all acts of alleged sexual harassment comprising the rude or lewd remarks to the claimant had occurred before the claimant left work in June 2005. As this was six months prior to the lodging of the claim, Mr Ferrity submitted that a sex discrimination case was incontrovertibly out of time.
12. Mr Ferrity also submitted that the letter demanding the repayment of monies could not be construed as a continuing act of sex discrimination. Mr Ferrity submitted that any such act to succeed under the principles in Hendricks -v- Commissioner of Police for the Metropolis [2003] IRLR 96 must be generically connected to those acts that have gone before. Mr. Ferrity submitted that this was clearly not the case in this case. He submitted that if the demand letter was to be construed in any way as a form of sex discrimination it could only be in the context of victimisation.
13. Mr Ferrity submitted that the Tribunal should have regard to relevant factors in the exercise of its discretion to extend the time limit and to do so in the context that to extend the time limits should be an exception rather than the rule.
14. Mr Ferrity directed the Tribunal to factors it should consider in rejecting the claimant's request that the Tribunal exercise its discretion to extend the time limits on the basis that it would be just and equitable to do so.
15. Firstly Mr Ferrity indicated that while he accepted that the claimant had had a depressive illness at the time this illness had not made it difficult or impossible for her to have lodged proceedings. Mr Ferrity asked the Tribunal to take note of the fact that during this same period of time the claimant was able to bring a personal injury claim and to conduct legal proceedings in relation to her divorce.
16. Mr Ferrity also submitted that the Tribunal should take account of the claimant's own knowledge about the time limits for sex discrimination claims.
17. Mr Ferrity submitted to the Tribunal that during the period of time when the claimant ought to have submitted any claim for sex discrimination, ie within three months of the last act prior to her leaving work in June 2005, the claimant had access to legal advice and advisers. In conjunction with her own awareness of time limits her failure to seek advice was a significant factor that would make it not just and equitable for the tribunal to exercise its discretion in the circumstances.
18. Mr Ferrity also submitted that the Tribunal should take account of the fact that the claimant had acknowledged that the respondents' letter requesting the repayment of monies lent to her arose from a purely financial transaction between the parties and that it had no connection with any sex discrimination/harassment as allegedly suffered by her.
19. Mr Ferrity further submitted that if the letter demanding repayment of monies were to be classified as victimisation it could only be so if it were less favourable treatment on the grounds of the claimant having brought previous complaints. Mr Ferrity said that in this regard the Tribunal should note that the claimant's own claim form indicated that no complaints had been made by her, as there was no point in complaining. Therefore a claim of victimisation necessarily premised on an earlier complaint was impossible to sustain in this instance.

Applicable Law

20. The relevant law is under the Sex Discrimination (Northern Ireland) Order 1976, Article 76.
21. Under the Sex Discrimination(Northern Ireland) Order 1976, Article 76, the statutory period within which a claim for sex discrimination under the Order must be brought is as follows:-
22. Article 76 (1), the end of the period of 3 months beginning when the act was done.
23. Article 76(5), A court or the 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.

The Three Month Time Limit

24. The claimant alleged that she had been subjected to sexual harassment at work. The claimant left her employment on sick leave in June 2005 and did not return. The claimant lodged a claim form in respect of these allegations in January 2006. The three month time limit within which a claim in relation to these allegations should have been lodged expired in September 2005.
25. The Tribunal considered the case of Hendricks -v- Commissioner of Police for the Metropolis [2003] IRLR 96. That case articulated the question the Tribunal must pose to itself to establish if there is a continuing act that may be relied on as to whether it was "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."
26. The Tribunal finds that there was no such continuing act in this case. The claimant accepted that the letter she received demanding the return of monies lent to her was not connected to her allegations of sexual harassment.
27. Accordingly the Tribunal concludes that the claimant did not lodge her claim within the statutory three month time limit.

Just and Equitable Discretion

28. The Tribunal was mindful of relevant case law and in particular its obligations to exercise its discretion judicially and in accordance with the principles set out in the case of Selkent Bus Co Ltd -v- Moore. These principles require the Tribunal to exercise its discretion in light of the all the circumstances and to balance the injustice and hardship of extending the time limit against the injustice and hardship of refusing it.
29. The Tribunal also had regard to the case of Robertson -v- Bexley Community Centre [2003] IRLR 434 which held that the exercise of the discretion should be the exception rather than the rule. The Tribunal also considered the case of British Coal Corporation -v- Keeble [1997] IRLR 636. That case held that the discretion under the Sex Discrimination Act in Great Britain, which equates to the Sex Discrimination (Northern Ireland) Order 1976 in Northern Ireland, to grant an extension of time on just and equitable grounds is as wide as that given to the civil courts by the Limitation Act 1980. The equivalent legislation in Northern Ireland, Article 50 of the Limitations (Northern Ireland) Order 1989, sets out factors or "checklist" which should be considered by the tribunal in the exercise of this discretion and can be summarised by the following:-

(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 parties sued have co-operated with any request for information.

(d) The promptness with which the claimant acted once he/she knew of the fact giving rise to the cause of action.

(e) The steps taken by the claimant to obtain appropriate professional advice once he/she knew of the possibility of taking action.

30. The Keeble case also stated that the Tribunal's function is to balance the degree of prejudice to the applicant caused by the operation of the limitation period against the prejudice to the employers if the case were allowed to proceed.
31. The Tribunal concluded that it would not be just and equitable to extend the time limit in this case. In reaching this conclusion the Tribunal was mindful of the fact that the claimant was aware of the three month time limit, that she was a woman who had access to two firms of solicitors during the relevant period, albeit on entirely separate issues and that she was a person who was capable of engaging in the legal processes involved in taking a personal injury claim.
32. The Tribunal did note that the claimant's personal life had been badly affected by her divorce and that she had suffered depression. However the Tribunal concluded that these circumstances should not operate to allow the exercise of the discretion on the basis that in these same circumstances and at this same relevant time period the claimant was capable of taking other legal action against the respondents.
33. The Tribunal also took account of the fact that during the relevant period the claimant met Mr Moore, her representative, through her boyfriend. The Tribunal did not accept the claimant's statement that she was too embarrassed to ask Mr Moore for advice earlier or that any such embarrassment, if it did exist, should be sufficient to allow the Tribunal to exercise its discretion.
34. The Tribunal did not accept that the balance of prejudice in this case was weighted in the claimant's favour. While the Tribunal accepted that if the claimant's claim was excluded she would have no further remedy for her allegations of sex discrimination, the Tribunal was mindful of the effect of allowing such a claim would have on respondents in having to face litigation where compensation could be significant. It was in light of this analysis that the Tribunal considered the question of prejudice in this case and concluded that the matter was evenly balanced. The Tribunal concluded that in the circumstances of this case where the claimant accepted her own awareness and importance of the time limit at the relevant time, the claimant thus failed to take appropriate action to adhere to the time limit.
35. The Tribunal further took into account the fact that the claimant has a constructive dismissal claim against the respondents. The Tribunal is aware that there is a difference in the potential remedy that might be available to the claimant in these proceedings, if successful. However the Tribunal was mindful of the decision in the Selkent where such other different proceedings were taken into account to defeat the claimant's contention that he would have no other remedy. The Tribunal applies that principle here.
36. Accordingly in light of all the circumstances in this case, the Tribunal refuses to exercise its discretion to extend the time limit as would not be just or equitable to do so.

Chairman:

Date and place of hearing: 26 March 2007, Belfast

Date decision recorded in register and issued to parties: