THE INDUSTRIAL TRIBUNALS

CASE REF:	644/13

CLAIMANT:			Anthony McCoey

RESPONDENT:		Citi Group

DECISION ON A PRE-HEARING REVIEW
The claimant’s claim of unfair dismissal is dismissed because it was not presented within the relevant statutory limit.   

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Buggy
	
Appearances:
The claimant was self-represented.

The respondent was represented by Ms K McCormick, Employment Lawyer, EEF.

REASONS

1.	The claimant was employed by the respondent employer (“the Employer”) for several years.  He was dismissed, ostensibly because of the Employer’s conclusion that he had failed to adequately document certain transactions, and had inaccurately documented some transactions.

2.	In these proceedings, the claimant complained of unfair dismissal.  There are factual disputes between the claimant and the respondent.  Depending upon the outcomes of those factual disputes, it seems to me that the claimant may well have had substantial arguments in favour of his unfair dismissal claim.  Unfortunately, as a result of my conclusions on the time-limit point, he now will not have the opportunity of pursuing the unfair dismissal claim.  

3.	Why should that be regrettable?  Because the main purposes of the statutory time-limit are as follows.  First, the time-limit is designed to protect an employer from having to deal with a case at a time when memories have faded.  However, the delay in this case is so relatively short that it is most unlikely that the employer’s ability to adequately defend itself would be affected by the claimant’s delay.  Secondly, the time-limit protects an employer against unexpected late claims.  However, in this case, the claimant always made it clear, from the very beginning, that he intended to apply to an industrial tribunal if his internal appeal against dismissal was not successful.  

4.	So, why have I decided the time-limit point, in the way that I have, despite the comments made in the last preceding paragraph?  Because I do not have any discretion in the matter.  The law is quite clear.  There is no adequate factual basis upon which I could be satisfied that it was not “reasonably practicable” for the claimant to present his claim within the relevant primary statutory time-limit.

5.	The claimant was notified of his dismissal on 5 December 2012 at the latest.  Accordingly, the primary time-limit expired on or about 5 March 2013.  The claimant pursued an internal appeal, which was still pending on 5 March 2013.  The claimant was not notified of the outcome of that appeal until 11 March.  These proceedings were started only on 28 March.

6.	The claimant had been absent from work from February 2012 until July 2012.  Throughout his period of absence, he was medically certified as being unfit for work.  The reasons given for that unfitness included stress and anxiety.

7.	Why did the claimant not present his claim within the primary time-limit of three months?  He told me, on oath, that the reason why he had failed to do so was that he took the view that the time-limit would not “run” against him until the Employer had provided him with documentation (which he wanted to use as evidence in his unfair dismissal claim) which he had demanded.  I am satisfied that all of the relevant documentation was not in fact provided to him at any time within the primary time-limit.  However, I am also satisfied that, from the date of his dismissal, he strongly believed that the had been unfairly dismissed.  Accordingly, the lack of the demanded documentation had no effect in the context of any decision on the question of whether or not to claim for unfair dismissal.

8.	The claimant has not alleged that stress or anxiety had any role in the failure to present the claim within the primary time-limit.  

9.	The claimant was advised by a solicitor, who was a friend of his, about legal issues, in the context of his contemplated unfair dismissal claim.  He was being advised by that solicitor as late as January 2013.  However, I find as a fact that the solicitor was not engaged by the claimant to act as such on his behalf.  I am also satisfied that the solicitor was not advising the claimant at any time after 1 March 2013.  

10.	As a result of the advice which the solicitor provided to the claimant, he knew, in December 2012, that the primary time-limit was three months from the date of termination of his employment.  

11.	The claimant has not suggested that his delay in making his industrial tribunal claim was in any way affected by the fact that there was a pending internal appeal.  

12.	Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides that an industrial tribunal is not entitled to consider a complaint of unfair dismissal 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”.

13.	Accordingly, sub-paragraph (a) of Article 145(2) contains what amounts to a primary statutory time-limit.  That primary time-limit ends upon the expiration of a period of three months beginning with the effective date of termination.  The secondary time-limit is set out in sub-paragraph (b) of Article 145(2).  However, that secondary time-limit becomes available only if the Chairman conclude that “it was not reasonably practicable” for the complaint to be presented within the primary time-limit.

14.	I asked Ms McCormick to let me have a copy of full version of the Employer’s disciplinary procedure.  She did provide  me with such a copy.  Having carefully considered that document, I am satisfied that the claimant’s dismissal, under that procedure, took effect from the date on which the gist of the dismissal letter was communicated to him (5 December 2012), and it was not delayed pending the outcome of the internal disciplinary appeal.  Therefore, the effective date of termination was indeed on or about 5 December 2012.

15.	It is necessary to dismiss these proceedings because the “reasonable practicability” pre-condition (in respect of the availability of the secondary time-limit)  is not met in the circumstances of this case.

16.	Case law shows that, in the context of the relevant time-limit, “reasonable practicability” equates to reasonable feasibility.

17.	Case law also shows that ignorance of the law may render it not reasonably practicable for a claimant to present his claim within the relevant primary time-limit, if (and only if) that ignorance is reasonable.

18.	Unfortunately, I consider that the relevant ignorance on the part of claimant cannot be regarded as reasonable ignorance in the circumstances of this case.  He simply assumed that time would not run as long as there were a failure (as he alleges) to comply with reasonable requests for the provision of documentation.  He had no basis for believing that.  He was not misadvised by anybody.  He did not make inquiries about the matter with any skilled advisor.  He just assumed that time would not run until the relevant documentation had been provided.

19.	The facts in this case are strikingly similar to the facts in the Employment Appeal Tribunal judgment in Reed in Partnership Ltd v Fraine UK EAT/05/20/10/DA, which was brought to my attention by Ms McCormick.  In that case, the claimant presented his claim of unfair dismissal one day out of time.  He mistakenly believed that time ran from the day after the effective date of termination, whereas, in England, time ran from the day of the effective day of termination itself.  As  a result, he presented his case one day outside the primary statutory time-limit.  The Employment Tribunal decided that the reason for the failure to present the claim within the primary time-limit was ignorance of the law, and that that ignorance was reasonable.  Allowing the appeal, Judge Peter Clarke made the following comments:

“Based on the facts found, I have no hesitation in concluding that the claimant has failed to show that it was not reasonably practicable to present his claims of unfair dismissal and wrongful dismissal in time …
The only answer to the question, “Was this claimant reasonably ignorant of the start date for the three month limitation period?” is no.  He knew of his right to bring a claim, he knew of the three month time-limit, he was not misled by the Respondent, nor any other agency or advisor as to the correct start date.  He made no inquires at all through Solicitors, the CAB or the Employment Tribunal website; he simply proceeded on a false assumption for which he had no basis”.

20.	Article 130A of the 1996 Order, and Articles 15 and 17 of the Employment Rights (Northern Ireland) Order 2003, clearly encourage claimants and employers to conscientiously engage within an internal appeal process, in the context of dismissals.  Legislative provisions corresponding to Article 130A and Articles 15 and 17 were not in force in Great Britain at the time when Palmer v Southend-on-Sea Borough Council [1984] IRLR 119 was decided.  That case is authority for the following propositions.  First, although the test of whether it “was not reasonably practicable”, where an employee presents a complaint, is not limited to whether the employee was not reasonably capable, physically, of presenting the claim, it is not sufficient for an employee to show merely that it was not reasonable for him to file the complaint.  The correct approach is whether in all the circumstances, including the fact of pending proceedings (if any) under the employer’s domestic procedure, it was reasonable feasible for the employee to present his complaint within the limitation period.  In Palmer, the English Court of Appeal approved the following comment, which had been made by Browne-Wilkinson J in Bodha v Hampshire Area Health Authority [1982] ICR 200:

“There may be cases where the special facts (additional to the bare fact that there is an internal appeal pending) may persuade an industrial tribunal, as a question of fact, that it was not reasonably practicable to complain to the industrial tribunal within [the primary] time-limit.  But we do not think that the mere fact of a pending internal appeal, by itself, is sufficient to justify a finding of fact that it was not “reasonably practicable” to present a complaint to the industrial tribunals”.

21.	I have carefully considered whether or not the generality of the principles which have emerged from Palmer (and in particular, from Palmer’s endorsement of Bodha) has been affected or limited by the enactment of the legislation which has been mentioned at paragraph 19 above.  Ultimately, I have come to the conclusion that the answer is “no”.

22.	I have arrived at that conclusion only after careful consideration of the judgments of the Employment Appeal Tribunal in the cases of Ashcroft v Haberdashers’ Aske’s Boys School [2008] IRLR 375, Royal Bank of Scotland v Bevan [2007] UKEAT                and John Lewis Partnership v Charman [2011] UKEAT.               .

23.	In each of those three cases, the claimant had failed to present an unfair dismissal complaint to an industrial tribunal within the primary time-limit, at a time when an internal appeal against dismissal was pending.  In each of the three cases, the relevant claimant was nonetheless held to have presented his claim within the relevant statutory time-limits.

24.	However, there are differences between the circumstances of those cases and the circumstances of this case.  In the Ashcroft and Bevan cases, a significant part of the context was the circumstance that the general law of England and Wales, at the relevant times, provided for an extension of the primary time-limit, by a period of an additional three months, if an internal appeal was pending upon the expiration of a period of three months beginning with the effective date of termination.  No equivalent to that legislation is currently in force in Northern Ireland.

25.	In Charman, the claimant had deliberately refrained from making inquiries about time-limits pending the outcome of the internal appeal.  However, in the present case, the internal appeal seems to have been irrelevant to the claimant’s failure present the claim within the internal time-limit.  (He simply assumed that he was entitled to refrain from doing so pending the resolution of his demand to be provided with certain documentation).

26.	As already stated above, this is my Decision in respect of the time-limit issue.  That was one of the issues which were listed for determination during the course of this Pre-Hearing Review.  Another issue was also listed for determination during the course of this PHR.  The other issue was whether (assuming that the complaint of unfair dismissal was not time-barred) the claimant’s complaint had little reasonable prospect of success.  In view of the decision  which I have made in relation to the time-limit issue, it would have been unnecessary for me to arrive at a determination in respect of the second PHR issue.  However, as Ms McCormick realistically recognised, it could not realistically be asserted that this complaint of unfair dismissal, if it was not time-barred, had in any event, (regardless of what findings of fact a “main” tribunal might make) little reasonable prospect of success.

Chairman:

Date and place of hearing:   30 July 2013, Belfast.	

Date decision recorded in register and issued to parties: