THE INDUSTRIAL TRIBUNALS

CASE REF:  862/07

CLAIMANT:			Mouloud Alouane

RESPONDENTS:		1.  Demetrios Pieri
2.	Pizza Express (Restaurants) Limited

DECISION ON A PRE-HEARING REVIEW

The tribunal has concluded that, whilst the claimant was outside the statutory time limits for lodging his claims, it is just and equitable in all the circumstances of the case for the tribunal to consider his claims.
Constitution of Tribunal:
Chairman (sitting alone):		Mr T Browne

Appearances:
The claimant represented himself.
Mr T Warnock, Barrister-at-Law, instructed by Lewis Silkin LLP, appeared for the respondents.

ISSUES

The issues for the tribunal were:-

(i)	whether or not the claimant had lodged his claims within the statutory time limits; and

(ii)	if the tribunal concluded that he had lodged his claims outside the time limits, whether it was just and equitable in all the circumstances of the case for the tribunal to consider his claims.

FINDINGS OF FACT

 1.	The claimant’s case is that the respondents discriminated against him by not employing him as a waiter on the ground of his sex and/or on the ground of his age.

 2.	His claims therefore are based in the provisions of the Sex Discrimination (Northern Ireland) Order 1976 and the Employment Equality (Age) Regulations (Northern Ireland) 2006.

 3.	Article 76 of the 1976 Order and Regulation 48 of the 2006 Regulations identically stipulate that an industrial tribunal “shall not consider a complaint … unless it is presented …before the end of the period of three months beginning when the act complained of was done.”

 4.	The claimant was interviewed by the first respondent in connection with his application to work as a waiter for the second respondent.  That interview and assessment took place on 8 January 2007 and 11 January 2007 respectively.

 5.	On 16 January 2007 a letter was sent on behalf of the second respondent, telling the claimant merely that he had been unsuccessful.

 6.	From a letter dated 22 January 2007, which was not challenged by the respondents, it would appear that as early as 17 January, the day after he was sent the rejection letter, the claimant was querying why he had not been offered the job.

 7.	The claimant’s letter of 22 January 2007 prompted a written reply by the first respondent, acting on behalf of the second respondent.  That letter was dated 26 January, but it would seem to have been posted on 1 February 2007.  In it, the first respondent asserted that it was not normal practice to provide written feedback, confining himself to stating that “the other candidate was stronger”.

 8.	It is clear from the contents of the claimant’s written reply to that letter on 21 February that he was seeking specific grounds for his failure to obtain the job, and specifically, that he was alleging discrimination on the grounds of age and sex.  He also makes it clear that he intends to take the matter to tribunal.

 9.	His knowledge of the specific legislation and venue for proceedings appear to the tribunal to conform with the claimant’s assertion in evidence that he consulted the Equality Commission in early February 2007.

10.	The claimant conceded that the Equality Commission had also emphasised the importance of complying with the strict timetable for submitting his claim.

11.	The claimant submitted his claim form to the Office of the Industrial Tribunals on 25 April 2007, after a further exchange of correspondence with the second respondent.  It was clear to the tribunal from the contents of that correspondence that the second respondent was fully aware of the exact nature of the claimant’s case.  It was also clear that the second respondent had made extensive enquiries from staff and written records, sufficient to comprehensively refute the claimant’s assertions.

12.	The claimant asserted in evidence that he believed the relevant date to be 26 January 2007, that is, when the second respondent wrote to him refusing to give reasons for not employing him.  On that basis, his calculation of three months would have expired on 26 April, the day after his application to the tribunal was lodged.

LAW AND CONCLUSIONS

13.	I am of the opinion however that if any act of discrimination took place, it was at the latest 16 January.  The legislation states that time begins to run from the date when “the act complained of was done”.  In my opinion, “was done” means just that, not when the claimant has written to in response to his query.

14.	On that basis, I conclude that the claimant, by lodging his complaint on 25 April, had done so outside the three month limit, which on my calculation expired at the latest on 16 April 2007.  He therefore was nine days outside the time limit.

15.	As stated earlier however, the tribunal has a discretion to consider the complaint if, in all the circumstances of the case, it considers that it is just and equitable to do so.

16.	In reaching my conclusion, I have had particular regard to the principles set out in British Coal Corporation -v- Keeble [1997] IRLR 336, EAT.  Reference is made therein to the similar power under the Limitation Act 1980, which deals with the powers of civil courts to extend time in personal injury actions.

17.	Keeble provides a useful summary of the factors which may properly be taken into account when weighing such matters, to consider the prejudice which each party would suffer as a result of granting or refusing an extension.

18.	The other circumstances which may be considered include (i) the length of and reasons for the delay.  In my view, the length of the delay in this case is very modest, and would appear to be grounded in an honest, if erroneous, calculation by the claimant that time expired on 26 April.  He was at least demonstrably consistent in adhering to this timetable, and the case was in its infancy within the tribunal system.

19.	(ii) the extent to which the cogency of the evidence is likely to be affected by the delay.  As stated earlier, the respondents were able in their correspondence before the claims were even lodged to demonstrate that they had access to all relevant witnesses and a significant amount of written records.  I have formed the view that they were fully aware of the nature and detail of the claims, and their response to them, from a time well within the three months.  It seems highly unlikely therefore that their defence would be compromised by the modest breach of the time limits.

20.	(iii) The promptness with which the claimant acted once he knew of the facts giving rise to the course of action.  It is clear from the date, content and frequency of correspondence that the claimant demonstrated an almost immediate intention to pursue his complaint, and on what grounds.

21.	For the reasons set out above, in my opinion, there is in this case sufficient evidence to satisfy me that, on the balance of probabilities, no prejudice would be suffered by the respondents. Whilst it is correct that time limits should be adhered to for the sake of legal certainty, I have concluded that the justice and equity of this case tip the balance in favour of the claimant, who otherwise would have no remedy available to him.

22.	I therefore conclude that in all the circumstances of this case it is just and equitable for the tribunal to consider these claims.

Chairman:

Date and place of hearing:	5 September 2007, Belfast.

Date decision recorded in register and issued to parties: