FAIR EMPLOYMENT TRIBUNAL
CASE REFS:   59/06 FET
555/06

CLAIMANT:		Paul Dominic McAllister

RESPONDENT:		Belfast City Council

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the tribunal has no jurisdiction to hear and to determine, firstly, the claimant’s complaint of unlawful discrimination on grounds of religion and political opinion and, secondly, the claimant’s complaint of unfair dismissal. Both the complaints are dismissed by the tribunal, without further order.
 
Constitution of Tribunal:
Chairman (sitting alone):		Mr J V Leonard
Appearances:
The claimant was represented by Mr P Moore.
The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Director of Legal Services, Belfast City Council.

REASONS

1.	By claim form dated 3 May 2006 and received by the Office of the Industrial Tribunals and Fair Employment Tribunal (‘the Office’) on that date, the claimant claimed against the respondent unlawful discrimination which he identified in the claim form as being religious discrimination and political discrimination.  By further claim form also dated 3 May 2006 and received by the Office on that date the claimant claimed against the respondent unfair dismissal.  By response to the respective claims dated 12 June 2006 and received by the Office on that date the respondent denied unlawful discrimination and unfair dismissal.  The respondent contended that the claim for unfair dismissal had not been brought within three months of the effective date of termination and was thus out of time.  

2.	The Vice President of the Tribunals under Article 85 of the Fair Employment and Treatment (Northern Ireland) Order 1998 directed that the matters which would otherwise fall to an Industrial Tribunal for consideration should be heard and determined by the Fair Employment Tribunal, including the unfair dismissal claim.  That direction of the Vice President was made on 7 August 2006.  There was a further direction made dismissing a respondent from the proceedings which does not need to concern this tribunal.  The matter was thereafter listed for a pre-hearing review upon the following issue:-

“(1)	Was the claim presented within the specified time limit.

(2)	If not, is it just and equitable, in all the circumstances of the case, for the Fair Employment Tribunal to consider this claim despite the fact that it is out of time.”

3.	At the outset of the hearing, the Chairman (with the statutory overriding objective in mind) raised with the respective representatives the issue of the manner in which the matter had been listed for a pre-hearing review. It appears that that was done in apparent contemplation of the tribunal’s jurisdiction only in regard to the unlawful discrimination complaint. That would appear to be so on account of the ‘just and equitable’ reference made in the preliminary issue as listed, which is a statutory test only applicable to the unlawful discrimination element of the complaints.  By consent, the respective representatives were in unanimous agreement that the tribunal ought properly at this pre-hearing review to hear and to determine the matter as regards the tribunal’s jurisdiction both in respect of the unlawful discrimination complaint and also as regards the unfair dismissal complaint.  Very helpfully, the claimant’s representative made the concession that both these complaints had been presented to the tribunal out of time and therefore the tribunal’s focus, in respect of the unlawful discrimination complaint, was on whether or not it was just and equitable, in all the circumstances of the case, for the tribunal to consider the discrimination complaint despite the fact that it was out of time.  In respect of the unfair dismissal complaint, the tribunal’s focus was on whether or not it had been reasonably practicable for the complaint to have been presented within time.  By consent, therefore, the tribunal was tasked with looking at both of the complaints as far as the tribunal’s jurisdiction was concerned in respect of the foregoing issues.

4.	The evidence before the tribunal was primarily the claimant’s own oral testimony.  In addition to that, certain documents were also adduced in evidence by the parties.  

THE TRIBUNAL’S FINDINGS OF FACT

5.	In consequence of the oral and documentary evidence adduced before it the tribunal made the findings of fact which are set out below.  It must be said, at the outset, that the tribunal had certain difficulties with the claimant’s evidence which was at times vague and indeed on occasions contradictory and inconsistent.  The claimant stated that he had been taking a course of medication which affected his memory and his ability to recall information with any degree of precision.  He also stated that he had been suffering from a medical condition.  There was no corroboration of these contentions whether by way of witness evidence or by means of any documentation.  The problematic quality of the evidence therefore caused the tribunal’s task of assessing the facts to be made rather difficult.  Notwithstanding that, the tribunal made the following findings of fact:-

(a)	The claimant was first employed by the respondent in 1995 as a swimming coach based at one of the respondent’s leisure centres in Belfast.  He continued in that job and in 2004 there was apparently some type of an incident involving the claimant and a leisure centre manager which resulted in the claimant being suspended from work and made subject to disciplinary charges.  There also appears to have been police involvement. The claimant indeed faced a criminal charge of assault. The prosecution of that criminal charge, so the claimant informed the tribunal, apparently resulted in the claimant’s acquittal. That was, so the tribunal understands, in or around September of 2005.  In respect of these criminal proceedings the claimant was represented by Solicitors, Messrs Madden & Finucane. There was no evidence that the claimant discussed his employment difficulties with those solicitors or sought advice in regard to that matter.

(b)	As regards the disciplinary proceedings taken against the claimant by the respondent, the claimant was suspended from employment on 26 October 2004 pending a disciplinary investigation.  The investigation appears to have been a fairly lengthy one. A disciplinary hearing was duly convened by the respondent on 10 June 2005.  The claimant was not in attendance apparently.  The claimant claimed before the tribunal that he had written to the respondent stating that he was unable to attend the disciplinary hearing on grounds of illness; there was no corroboration of that.  

(c)	In any event, a decision was taken by the respondent as an outcome of the disciplinary hearing that the claimant would be dismissed on grounds of gross misconduct.  The claimant was notified of that decision and of his right to appeal the decision.  By letter dated 20 June 2005 the claimant wrote to the respondent formally requesting an appeal in regard to the dismissal decision on the grounds that, as it was put, “the decision is wrong”.  At that time, if not before, the claimant was receiving advice and assistance from his trade union, Northern Ireland Public Service Alliance (“NIPSA”).  The 20 June 2005 letter had indeed been prepared on the claimant’s behalf by NIPSA and was signed by the claimant.  Notwithstanding the unsatisfactory nature of the claimant’s evidence, the tribunal’s best understanding of the situation is that the claimant had visited NIPSA’s offices in and around that time, June 2005, and had spoken with a Mr Campfield, a senior NIPSA official and possibly also with a Mr Graham another senior NIPSA official.

(d)	The claimant also had a number of discussions with a person who he initially described to the tribunal as being a ‘friend’, a Mr Joe McGuigan. From further evidence it transpired that Mr McGuigan was actually, apart from any friendship, a NIPSA trade union representative and employee of the respondent.  The tribunal certainly found it rather difficult to obtain specific information from the claimant in regard to the number and frequency of his discussions and other contacts made with these NIPSA officials.  On the balance of the evidence, unsatisfactory though it might have been, the tribunal concludes that from a time in or around the initial disciplinary proceedings being taken against the claimant up to the time of the claimant’s dismissal and following through into the appeal stage, the claimant had fairly regular personal contact both with Mr McGuigan and also with NIPSA Headquarters officials, including Mr Campfield and Mr Graham.  The claimant provided these NIPSA officials with the relevant facts as far as he was concerned and he relied on NIPSA for advice and assistance.  

(e)	By letter dated 21 June 2005 the respondent replied to the 20 June 2005 letter from  the claimant by requesting further detail as to the basis of the claimant’s allegation that the dismissal decision was ‘wrong’.  By letter dated 20 September 2005, prepared again by NIPSA on behalf of the claimant and signed by him, the claimant provided to the respondent specific details of the basis upon which he wished to appeal the dismissal decision.  There is no doubt that in or around September of 2005 the claimant had quite detailed discussions with NIPSA officials at a senior level regarding the matter of his dismissal and the possible grounds of his appeal. These discussions resulted in the 21 September 2005 letter being dispatched to the respondent. Materially, the tribunal noted that that letter expressly refers to, “my representative”, that being it must be presumed an express reference to the NIPSA official then representing the interests of the claimant in the matter, as the claimant had confirmed that the text of that letter was prepared by NIPSA.

(f)	By letter dated 7 November 2005 the respondent invited the claimant to attend an appeal hearing listed for 6 December 2005.  Apparently that appeal did not in fact proceed on the account of the absence of a hearing chairman; the appeal was rescheduled for 20 February 2006.

(g)	The claimant attended the appeal hearing on 20 February 2006 together with the NIPSA official, Mr Graham.  The outcome of the appeal was notified to the claimant by a letter dated 27 February 2006. That letter was apparently received by the claimant on 2 March 2006.  Thus by 2 March 2006 the claimant knew without any doubt that his appeal had been refused and that his dismissal by the respondent stood.

(h)	At hearing the claimant’s evidence included suggestions that he was at that time experiencing matrimonial difficulties and that he was indeed not residing at his home address.  He talked about experiencing certain medical difficulties and of being prescribed medication.  When asked at hearing to provide specific details of the medication or to produce any documentary evidence in respect of that, or doctor’s or hospital appointment details, the claimant was unable to do so.  On balance, and not without some difficulty, the tribunal accepts that the claimant might at some stage have suffered from some type of psychological difficulties at the time of the suspension from work and the disciplinary process which resulted in medication being prescribed by the claimant’s doctor for some type of anxiety state or possibly depressive illness.  However the difficulty that the tribunal faced is that the precise nature, duration and the extent or degree of this illness was not the subject to any specific proof. Thus the tribunal had great difficulty in gauging whether or not this was of a type, duration or extent or degree such as would have physically or mentally prevented the claimant from properly conducting business in respect of his claim in a timely and appropriate fashion.  Certainly from the evidence the claimant seems to have been quite capable in engaging in various dealings with NIPSA officials and in discussing his case with his NIPSA advisers.  The tribunal shall comment further on that below.

(i)	The Tribunal did not need to determine any further findings of fact in order to reach its conclusions in the matter.  

THE APPLICABLE LAW

6.	This case concerns applicable time limitations in respect of unfair dismissal and unlawful discrimination.  In respect of the latter, Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘the 1998 Order’) provides as follows:-

Period within which proceedings must be brought

46. (1)	Subject to paragraph (5) and to any regulations under Article 22 of the   Employment   (Northern Ireland) Order 2003, the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of— 

(a)	the end of the period of three months beginning with the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or

(b)	the end of the period of six months beginning with the day on which the act was done.
(2) – 

(3) –

(4) –

(5)	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. 

7.	In respect of unfair dismissal, Article 145 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides as follows:-

Complaints to industrial tribunal

145. (1)	A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer. 

       (2)	Subject to paragraph (3), an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal — 

(a)	before the end of the period of three months beginning with the effective date of termination, or

(b)	within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

8.	The Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’) provide for a possible extension of the normal time limit for presenting the complaint, whether that be a complaint of unfair dismissal under the 1996 Order or a complaint of unlawful discrimination under the 1998 Order.  The 2004 Regulations provide as follows:-

15. (1)	Where a complaint is presented to a Tribunal under a jurisdiction listed in Schedule 2 or 3 or, as the case may be, under Article 38 of the Order of 1998, and –

(a)	either of the dismissal and disciplinary procedures is the applicable statute procedure and the circumstances specified in paragraph (2) apply; or

(b)	

the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day in which it would otherwise have expired.

(2)	The circumstances referred to in paragraph (1)(a) are that the employee presents a complaint to the Tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of Regulation 5(2)), was being followed in respect of matters that consisted of or included the substance of the Tribunal complaint.  

(3) -	

(4) -	

 (5) -	In this Regulation “the normal time limit” means –

(a)	subject to sub-paragraph (b), the period within which a complaint under the relevant jurisdiction must be presented if there is to be no need for the Tribunal, in order to be entitled to consider it to –
(i)	exercise any discretion; or

(ii)	make any determination as to whether it is required to consider the complaint, that the Tribunal would have to exercise or make in order to consider a complaint presented outside that period.

9.	There has been much recent judicial authority concerning a number of aspects of the English equivalent of the 2003 Order and the 2004 Regulations which the tribunal noted insofar as material. The tribunal was referred in argument to two case authorities, one local, one from the Employment Appeal Tribunal in England, to which the tribunal shall allude further below.  

THE TRIBUNAL’S DETERMINATION

10.	The claimant’s representative has quite fairly and properly conceded that both the unfair dismissal and the unlawful discrimination complaints are out of time.  The claimant’s representative in his opening remarks has made it clear to the tribunal that the act of unlawful discrimination relied upon is the alleged unfair dismissal of the claimant. That dismissal occurred on 10 June 2005. The claimant’s representative made it clear to the tribunal that there was no argument concerning continuing discrimination or a course of such alleged conduct. Article 46 (1)(a) of the 1998 Order therefore provides for the normal time limit. The tribunal’s focus is therefore upon 10 June 2005 and the time limits and the material events thereafter. The claimant’s claims were received by the Office on 3 May 2006, that is to say something approaching 11 months after 10 June 2005.  The claimant’s appeal was instituted on foot of two letters prepared by NIPSA on his behalf. These were dispatched to the respondent and dated respectively 20 June 2005 (lodging the initial appeal) and 20 September 2005 (providing specific detailed grounds of appeal).  If the tribunal is to take it, which it does, that the claimant was pursuing the statutory procedure as provided for in the 2003 Order and the 2004 Regulations, extension of time provisions provided for by Regulation 15 of the 2004 Regulations would come into play and would have the affect of extending the normal time limit.  

11.	In view of the claimant’s concession that both complaints are out of time, the tribunal need only say in brief that the normal time limit in respect of the unlawful discrimination and the unfair dismissal complaints takes us up to 10 September 2005.  If one then, by virtue of Regulation 15 of the 2004 Regulations takes a further period of three months beginning with the day following the expiry of the normal time limit, that takes matters forward to 11 December 2005.  The 11 December 2005 is therefore the ‘end date’ by which proceedings ought to have been brought to comply with the statutory provisions of both the 1996 and the 1998 Orders.  

12.	Dealing firstly with the ‘just and equitable’ extension issue in respect of the unlawful discrimination complaint, there is a considerable body of authority in respect of that. In essence, the tribunal has to be cognisant of carefully scrutinising the grounds upon which the tribunal’s discretion ought properly to be based and of seeking to achieve a fair balance between the interests of the claimant and of the respondent in reaching a decision upon the exercise of this discretion.  The tribunal was referred by the respondent’s representative to Harvey on Industrial Relations and Employment Law, Division T ([277] and following), and to the detailed commentary by the learned author therein regarding the matter of time limitations and what is sometimes referred to as the ‘escape clause’.  What is quite clear is that the existing law in respect of a ‘just and equitable’ extension (and indeed also the ‘not reasonably practicable’ issue for unfair dismissal) has not materially been affected by the recent statutory procedure implemented by the 2003 Order and the 2004 Regulations.  The ‘just and equitable’ extension discretion is a wide discretion, much broader in effect than the ‘not reasonably practicable’ formula (see for example British Coal Corporation v Keeble [1997] IRLR 494).  The tribunal is required to consider the prejudice which each party might suffer as a result of the granting or the refusing of an extension and to have regard to all the other circumstances and in particular:-

(a)	the length of and the reasons for the delay;

(b)	the extent to which the cogency of the evidence is likely to be effected by the delay;

(c)	the extent to which the party sued had co-operated with any request for information;

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

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

The Tribunal was referred in argument to the respective cases of Royal Bank of Scotland v Theobald [2007 UKEAT 0444/06 and to a local Industrial Tribunal case, Brewster v Victim Support Northern Ireland, Case Ref. 19/07, which latter case cites the Theobald case in order to distinguish Brewster from Theobald. However the tribunal regards these two cases as being not particularly helpful. The cases deal with the issue of whether or not a claimant had or had not reasonable grounds for believing that statutory dismissal procedures were being followed and was thus entitled to avail of the statutory extension of time. On the facts of this case, the tribunal is not in doubt that there was a relevant procedure in train and that the claimant had reasonable grounds to believe that to be the case. Thus the claimant may properly avail of the time extension under Regulation 15 of the 2004 Regulations. However that time, as extended, did expire well in advance of the date the claims were lodged with the Office.

13.	In this matter, the tribunal has had regard to the evidence before it and the tribunal sees a claimant who had sought, quite properly, timely advice from his trade union, NIPSA, and who was being assisted and being advised by NIPSA throughout what turned out to be quite a lengthy process. That process of seeking and of obtaining advice and assistance from NIPSA began, as the tribunal understands it, at the time or shortly after the claimant’s initial suspension pending disciplinary proceedings and the process continued up to the stage of the appeal hearing.  The claimant was being assisted in that process not just by a workplace trade union official, Mr McGuigan (who was also a friend) but by senior NIPSA officials based at NIPSA Headquarters. This is on the strength of the claimant’s evidence to the tribunal.

14.	Whilst the claimant’s answers in response to the respondent’s representative’s cross-examination questions as to whether or not time limits were specifically discussed were indeed inconsistent (he answered once that they were and again that he “could not remember”), nonetheless the tribunal believes is more probable than not that time limits were indeed discussed at various stages with these senior NIPSA officials.  The claimant endeavoured to give the tribunal the impression that he was encouraged in the belief by NIPSA that he had three months from the date of the rejection of his appeal in which to lodge his claims before this tribunal.  The tribunal regards that suggestion on the part of NIPSA to the claimant as being possible but rather improbable.  Even if it were true, that does not account for the entirety of the further and substantial delay. That delay subsisted from 2 March 2006 upon which date the claimant had received the respondent’s letter advising him of the outcome of his appeal until 3 May 2006 when the claims were finally  presented to the Office.  

15.	If the claimant had wished to mount a persuasive case that perhaps due to physical or psychological difficulties he did not have the capacity to present his claim within time, or indeed a reasonable time thereafter, he could have presented some cogent and compelling evidence in that regard. The onus is upon any claimant to satisfy the tribunal in that regard. Instead the tribunal was required to place reliance upon on some rather inconsistent and unsatisfactory oral testimony.  It is clearly evident that the claimant did have the capacity to meet with and to co-operate with the NIPSA officials in the dispatching of correspondence, in seeking advice, and in attending at the appeal hearing during this time.  There was insufficient evidence placed before the tribunal to enable it to determine conclusively that any medical condition from which the claimant might have been suffering during or throughout this period, or indeed any other difficulties at a personal level, in any way interfered with the claimant’s capacity to present a complaint in a timely fashion to such an extent as to account for the length of the delay and the reason for that.  

16.	There has been considerable passage of time, in excess of two years, since the date of the dismissal. That dismissal is the act of alleged discrimination stated by his representative to be relied upon by the claimant.  The specific events which apparently led to that dismissal took place in or around October 2004, or perhaps even before that.  The tribunal believes that there is a risk under these circumstances that the cogency of the evidence might well be significantly affected.  There is no evidence that the delay was caused by any default on the part of the respondent or any failure to provide information to the claimant.  Once the claimant was made fully aware that his appeal was unsuccessful, there was a further and largely unexplained delay before the claims were finally lodged with the Office.

17.	Taking all of these factors into account, the tribunal has great difficulty in accepting that this is a case in which discretion ought to be exercised in favour of the claimant.  Balancing the appropriate considerations, the tribunal believes that it ought not to do so. That being the case and taking everything into consideration, the tribunal on foot of Article 46(5) of the 1998 Order declines to consider the claimant’s complaint of unlawful discrimination as it is out of time and the tribunal does not consider that in the circumstances of this case it is just and equitable to do so and thus to extend time for that purpose.  

18.	That then brings the tribunal to the claimant’s complaint of unfair dismissal.  That complaint is, likewise and as has been conceded, substantially out of time.  The ‘not reasonably practicable’ hurdle is an even higher one for the claimant to attain than the test applicable to cases of discrimination.  In short, and bearing in mind appropriate considerations, the tribunal determines that it was reasonably practicable for the complaint to have been presented within the specified time period. The tribunal therefore does not need to address the further element of Article 145(2)(b) of the 1996 Order. The tribunal believes that it is more probable than not that time limits in respect of unfair dismissal (and indeed discrimination) claims were indeed discussed between the claimant and his advisers. It would certainly be rather surprising if such an organisation as NIPSA, when dealing at a senior official level with a person such as the claimant, did not fully alert the claimant to the issue of statutory time limits. There is insufficient evidence of any impediment, physical or mental, preventing the claimant from lodging his complaint within the extended time limit; the law on awaiting the outcome of a disciplinary appeals process is well settled: the courts and tribunals have consistently rejected the argument that the effective date of termination is not the date when the employee was originally dismissed but the date when the internal appeal was turned down.  The relatively new statutory process provided by the 2003 Order and the 2004 Regulations does not specifically affect that. (There is a considerable body of authority on this issue, generally and specifically; see Dedman v British Building and Engineering Appliances Ltd [ICR], Walls Meat Co Ltd v Khan [1979] ICR 52 CA, Riley v Tesco Stores Ltd [1980] ICR 323 CA, London 

International College v Sen [1993] IRLR 333, Savage v J Sainsbury Limited [1980] IRLR 109 and see generally Harvey on Industrial Relations and Employment Law, Division T [253] and following).  This is not a proper case to invoke the ‘escape clause’ in favour of the claimant.  

19.	The tribunal therefore does not have the jurisdiction to hear the claimant’s complaints either of unlawful discrimination or of unfair dismissal.  It had been agreed by the parties at the outset that the tribunal was properly entitled to deal with and to determine its jurisdiction at this pre-hearing review in respect of both of those complaints (and not just the discrimination complaint).  The tribunal has an overriding objective to manage cases in a just and an appropriate fashion. That being the case, the tribunal has power to proceed to dismiss both of the claimant’s claims on foot of the foregoing determination as to jurisdiction.  

20.	Accordingly, the tribunal’s decision is that the tribunal has no jurisdiction to hear and to determine, firstly, the complaint of unlawful discrimination on grounds of religion and political opinion and, secondly, the claimant’s complaint of unfair dismissal. Both the complaints are dismissed by the tribunal, without further order.

Chairman:

Date and place of hearing:	4 July 2007, Belfast

Date decision recorded in register and issued to parties: