FAIR EMPLOYMENT TRIBUNAL

CASE REFS:  4/07 FET
		16/07IT

CLAIMANT:		Hugh Paul Donaghy

RESPONDENTS:		1.  Royal Mail
		2.  Gerry McMullan	

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that, whilst the claimant’s claims for discrimination on the grounds of religious belief and for discrimination on the grounds of disability were presented outside the three month time limit stipulated in the relevant legislation, it is, nevertheless, just and equitable to extend time to enable the Tribunal to consider the complaints.

Constitution of Tribunal:
Chairman (sitting alone):		Mrs Ó Murray

Appearances:
The claimant was represented by Mr Patrick Moore in his personal capacity.
The respondents were represented by Mr D Dunlop BL instructed by Napier and Sons Solicitors.

1.	The claimant’s claims were for discrimination on the grounds of religious belief contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 as amended (referred to below as “the Order”) and secondly for discrimination on the grounds of disability contrary to the Disability Discrimination Act 1995 (referred to below as “the Act”).

2.	It was agreed between the parties that the claims were lodged outside the requisite time limits.  The sole issue therefore for the Tribunal to determine was as follows:-

(a)	Is it just and equitable in all the circumstances of the case for the Tribunal to consider the claims despite the fact that they were presented outside the requisite time limits.

Sources of Evidence

3.	The Tribunal heard evidence from the claimant and from Mr John Coyle on the claimant’s behalf.  The Tribunal also had regard to the agreed documentation which included extracts from the claimant’s GP notes and records.

Facts

4.	After hearing the submissions of the representatives and considering the evidence, the agreed documentation, the claim forms and response forms, the Tribunal found the following facts relevant to the issue before it:-

4.1	The claimant was employed as a driver by the respondent and spent most of his time at work out in his van on the road.

4.2	The claimant has asthma and type 1 diabetes.

4.3	The date of the alleged act of discrimination was 29 June 2005 being the date on which the claimant alleges that he asked for time off to go for a CT scan in relation to the bowel cancer which had recently been diagnosed.

4.4	The claimant was rushed to hospital on the evening of 29 June 2005 and had to have a bowel operation the next day which necessitated him being in hospital for 11 days.  His recuperation period was lengthy and meant that he had to stay with his parents for 4 or 5 months, that is, until October or November 2005.  He could not walk within the first 12 to 14 weeks of that period.  His chemotherapy started on 17 August 2005 and continued until March 2006.  He has attended as an out-patient in relation to his cancer since July 2005 until the present day and will continue to attend.  Indeed, shortly before the hearing, the claimant underwent a CT scan to determine whether his cancer had returned and at the time of the hearing he awaited those results.

4.5	The claimant was off work from the date of his operation until he returned to work in May 2006.  At first he worked a few hours a day to phase himself back into work returning to full-time work in August 2006.

4.6	In January 2006 the claimant saw an article in Royal Mail’s in-house magazine which indicated that another employee had been offered time off work in order to pursue his football with the Northern Ireland football squad.  The claimant said that this “knocked the heart out” of him and he “could not believe that football was worth more than someone’s life”.

4.7	Following his return to work the claimant instituted the respondent’s grievance procedure and lodged two forms.  The first form, being a grievance form was lodged on 13 July 2006 and the second form, which was a bullying and harassment form was lodged on 21 August 2006.

4.8	The claimant put in the forms for the internal grievance procedure because a friend told him he should do so and because he thought he had been unfairly treated.  He was given no advice by the Trade Union and indeed was accompanied at the meetings by a colleague Mr Coyle in his personal capacity.  Mr Coyle gave evidence that the two forms were given to the claimant by the Trade Union representative but that the Trade Union representative did not go through them with Mr Donaghy and effectively left him on his own and that is why Mr Coyle said that he stepped in to help in his personal capacity.

4.9	The claimant had to have an operation to reverse the colostomy which had been performed on 30 June 2005, and to repair a hernia.  He was in hospital from 20 September 2006, had the operation on 28 September 2006 and was off work for 2 – 3 weeks.  He returned to work at the end of October 2006.

4.10	The grievance procedure was completed at sometime in October 2006.

4.11	The claimant was given Mr Patrick Moore’s card by a friend at the end of November 2006 and immediately rang Mr Moore to ask for advice.  Mr Moore mentioned the possible religious discrimination complaint during that conversation given that the Royal Mail worker who had been offered time off work to pursue his football was of a different religion to the claimant.  The claimant did not know until then that he could pursue complaints in the Tribunal.  Mr Moore advised the claimant to lodge Tribunal proceedings.

4.12	The claim forms had been completed by the claimant and he lodged them on 6 December 2006 with the Tribunal office.

The Law

5.	Under Article 46 of the Order the time limit for presenting the claim of discrimination on the grounds of religious belief, in this case is three months from the date of the alleged act and under the Act the time limit for a disability discrimination claim is the same.  Under Article 46(5) of the Order and under Schedule 3 paragraph 3(2) of the Act a Tribunal may consider a late claim if, in all circumstances of the case it considers that it is just and equitable to do so.  The Employment Appeals Tribunal in the case of British Coal Corporation -v- Keeble 1997 IRLR 636 held that the discretion 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 this jurisdiction is the Limitation (Northern Ireland) Order 1989.  At Article 50(4) of that Order several factors are listed for consideration.  In addition the Tribunal was referred to and has considered Harvey’s Industrial Tribunals and Employment Law Division T paragraphs 277 to 282 in which is outlined the law and case law in the area.

6.	The onus is on the claimant to convince the Tribunal to exercise its discretion and the exercise of the discretion is the exception rather than the rule.  The factors to be considered include:

(1)	The length of and reasons for the delay;

(2)	the extent to which the cogency of the evidence is likely to be affected by the delay;

(3)	the extent to which the respondent co-operated with requests for information;

(4)	the promptness with which the claimant acted when he knew of the facts giving rise to the cause of action; and

(5)	the steps which the claimant took to get professional advice once he knew of the possibility of taking action.

The Findings

7.	Applying the law to the facts as found the Tribunal finds as follows:

(1)	The parties agreed and the Tribunal therefore finds that the claim forms received in the Office of the Industrial Tribunal and Fair Employment Tribunal on 6 December 2006 were presented outside the requisite time limits set out in the legislation.

(2)	On the question of whether it is just and equitable to extend time, the Tribunal finds that this is, indeed, an exceptional case and is persuaded to extend time.  The claimant came across in evidence as a genuine, unsophisticated man who continues to be deeply distressed about, and understandably pre-occupied with, his continuing medical condition. 

(3)	Counsel for the respondent fairly conceded in his submission that it would be very difficult for him to argue that the period between the operation on 30 June 2005 and the claimant’s return to work in May 2006 should not be discounted when assessing the time limit.  The Tribunal agrees with that assessment and the focus of the Tribunal therefore is on the period after the claimant’s return to work from May 2006 until the claim form was lodged on 6 December 2006 which was a period of 6-7 months.  The Tribunal accepts the claimant’s evidence that he was so concerned about his health during the entire period from the date of his operation in June 2005 that he did not turn his mind to seeking information about making a claim.  The seriousness of the claimant’s medical condition is underlined by the extracts from his GP notes and records which outline his ongoing invasive treatment and the fact that he had to go in for another operation in September shortly after he had initiated the internal grievance procedures.

(4)	The evidence given by Mr Coyle supported the claimant to the extent that he confirmed that the claimant did not receive advice from the trade union and relied on friends to support him during the internal grievance procedure.  Whist Mr Coyle’s evidence was far from satisfactory in some respects, the Tribunal’s view is that his evasiveness in relation to some questions related more to defending his own position:  Mr Coyle perhaps should have been capable of giving Mr Donaghy advice on the possibility of making a claim when he first became involved in the internal grievance process.  The Tribunal did not find that the unsatisfactory aspects of Mr Coyle’s evidence detracted from the claimant’s very clear evidence that his main concerns, worry and distress were over his numerous medical problem during the whole period.

(5)	The claimant clearly felt he had been unfairly treated but the Tribunal accepts his evidence that he did not know that he could make a claim particularly as the evidence was clear that he was not given advice by the trade union nor by Mr Coyle.

(6)	The Tribunal has considered all of the factors outlined in the Keeble case, Article 50(4) of the Limitation (NI) Order 1989 and the outline of the law in Harvey, and finds that any prejudice to the respondent would be minimal particularly given that the claims hinge on evidence related to a limited number of events.  The Tribunal does not find the cogency of the evidence has been affected by any delay.  

(7)	The Tribunal finds it reasonable, in view of his medical condition, the operations that he had to undergo, and the fact that in his contact with people connected with the trade union he received no advice on the possibility of taking claims, that the claimant waited until the end of November to contact Mr Moore following a friend giving him Mr Moore’s card.  The claimant moved speedily following Mr Moore’s advice and lodged the claim forms himself on 6 December 2006.

(8)	Counsel for the respondent has submitted that as the claimant submitted the internal grievance forms that amounted to him seeking redress and that should count against the exercise of the discretion.  The Tribunal assessed carefully the demeanour of the claimant whilst he gave his evidence and found him to be an unsophisticated man whose evidence on his lack of knowledge about what he could or should do about the injustice he thought he had suffered, was compelling especially against the background of the serious ongoing multiple health problems from which he suffered.  

(9)	The Tribunal therefore accepts that the claimant did not know that he could make the relevant claim until he spoke to Mr Moore and he acted promptly thereafter.  As a result it is just and equitable to extend time in this case to enable the claims to proceed to hearing.

Chairman:

Date and place of hearing:	4 September 2007, Belfast

Date decision recorded in register and issued to parties: