THE INDUSTRIAL TRIBUNALS
CASE REF:	1450/16
	
CLAIMANT:		Elaine Stewart

RESPONDENT:	Tim McQuoid Solicitors (Sole Trader)

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that all of the claimant’s claims are out of time. The tribunal has no jurisdiction to hear the claimant’s claims and they must therefore be dismissed.

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge Turkington 

Appearances:

The claimant appeared at the hearing and was represented by Mr John McStravick of JMS, Solicitors.

The respondent appeared at the hearing and was represented by Mr Neil Phillips, Barrister-at-Law, instructed by Worthingtons, Solicitors.

The Claims 

1.	The claims lodged with the tribunal were:-

(a)	a claim of unfair dismissal
(b)	a claim of unlawful deduction of wages
(c)	a claim of breach of contract
(d)	a claim of sex discrimination.

The Issues

2.	The issues to be determined by the tribunal at the pre-hearing review were as follows:-

(a)	Whether the tribunal has jurisdiction to hear the claimant’s claim of unfair dismissal in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time-limit for presenting her claim.

(b)	Whether the tribunal has jurisdiction to hear the claimant’s claim of unlawful deductions of wages in view of the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996 regarding the time-limit for presenting her claim.

(c)	Whether the tribunal has jurisdiction to hear the claimant’s claim of breach of contract in view of the provisions of Article 7 of the Industrial Tribunals (Extension of Jurisdiction) Order (Northern Ireland) 1994 regarding the time-limit for presenting her claim.

(d)	Whether the tribunal has jurisdiction to hear the claimant’s claim of sex discrimination in view of the time-limits set out in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976.

Sources of Evidence

3.	The tribunal heard oral evidence from the claimant who was cross-examined by the respondent’s counsel.  The tribunal was also referred to a number of documents in the bundle of documents prepared for the pre-hearing review. 

Relevant Findings of Fact

4.	The claimant commenced employment with the respondent as a Trainee Solicitor on or about 1 September 2014.

5.	On or about 16 June 2015, there was incident in the respondent’s office.  The claimant did not work for the respondent after that date.  In her evidence to the tribunal and in her claim form, the claimant accepted that 16 June 2015 was the latest date on which any alleged discrimination occurred.

6.	On 23 June 2015, the claimant wrote a grievance letter to the respondent in which she stated that she considered it impossible to return to the respondent’s practice.

7.	The claimant began work for JMS solicitors during September 2015.  In her claim form, the claimant gave the commencement date as 1 September 2015, but in her evidence to the tribunal, the claimant said that she commenced working for JMS solicitors on 15 September.  For the purposes of this pre-hearing review, the tribunal finds on balance that the claimant began this employment on 15 September.  

8.	Under cross-examination, the claimant accepted that, by 15 September 2015, Mr McStravick of JMS solicitors was her employer and the respondent was no longer her employer.  

9.	For the purposes of this pre-hearing review, the tribunal therefore finds that the effective date of termination of the claimant’s employment with the respondent was (at the latest, and giving the claimant the benefit of any doubt) 15 September 2015.

10.	In respect of the claimant’s claims for notice pay, arrears of pay, holiday pay and other payments, namely unpaid bonus, additional hours, travel and mileage, it was agreed between the parties that any such sums due would have fallen due for payment at or shortly after the termination of the claimant’s employment.  

11.	On 16 February 2016, Mr McStravick as representative for the claimant wrote to the HR consultant who had been engaged by the respondent to deal with the claimant’s grievance.  That correspondence enclosed a schedule of loss which Mr McStravick stated that his client, the claimant, would be lodging along with her ET1 if the respondent did not settle the claim.

12.	The claimant lodged her claim form with the Office of the Industrial Tribunal and the Fair Employment Tribunal on 31 May 2016.

13.	The claimant conceded under cross-examination that, at all relevant times, she was a trainee solicitor.  She was therefore aware that there were time limits for lodging claims with the tribunal and she was also aware of what those time limits were. She also accepted that her new employer Mr McStravick, solicitor, had been her legal representative since February 2016.  

14.	In her evidence to the tribunal, the claimant explained that she had hoped to have a resolution to her grievance and it was only when it became apparent that this was not forthcoming did she then decide to lodge her claim with the tribunal.

Applicable Law

Unfair Dismissal

15.	Article 145 (2) of the Employment Rights (Northern Ireland) Order 1996 states as follows:-

“(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.”

16. 	Therefore, it is clear that there are two limbs to the discretion to extend time in article 145 (2) (b).  Firstly, the claimant must satisfy the tribunal that it was not reasonably practicable for her to lodge her claim within 3 months of the effective date of termination of her employment and secondly, the claim must then be lodged within such further period as the tribunal considers reasonable.

17.  	In the case of Palmer & Saunders (appellants) v Southend-on-Sea Borough Council (respondents), the Court of Appeal said as follows:-

“The best approach is to read “practicable” as the equivalent of “feasible” and to ask “was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months”

18.  	Harvey on Industrial Relations and Employment Law Division Pl Practice and Procedure para 253 states as follows:-

“An employee who delays making an unfair dismissal claim whilst he invokes and internal disciplinary or dismissal procedure will invariably find it difficult to get it accepted if, as a result of pursuing the internal process, he presents his claim to the tribunal out of time.  Unless there are additional circumstances, the mere fact of invoking an internal appeals procedure is not regarded as sufficient to justify a finding that it was not reasonably practicable to present the claim in time”.

This approach is demonstrated by the case of Bodha (Vishnudut) v Hampshire Area Health Authority 1982 ICR 200 (approved by the Court of Appeal in Palmer) where Browne-Wilkinson J said:-

“There may be cases where the special facts (additional to the bare fact that there is an internal appeal pending) may persuade a tribunal, as a question of fact, that it was not reasonably practicable to complain to the tribunal within the 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 tribunal”.

19. 	In the Palmer case, May LJ set out a list of some additional factors or considerations which a claimant may rely on.  These include the question of the claimant’s knowledge (or lack of it) regarding his or her right to bring a claim of unfair dismissal and the time limit, and whether the employer had misrepresented any relevant matter to the employee.

Unlawful deductions of wages

20. Article 55 of the Employment Rights (Northern Ireland) Order 1996 states as follows:-

“(2) 	Subject to paragraph (4), an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with — 

(a)	in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or
……
 (3) 	Where a complaint is brought under this Article in respect of 

(a) 	a series of deductions or payments, or
………

the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. 

(4) 	Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.”

21. 	The circumstances in which a tribunal can extend the time for a claim to be lodged are therefore the same as for a claim of unfair dismissal and the principles set out above are also applicable in respect of a claim of unlawful deductions.
 
Breach of contract

22. 	Article 7 of the Industrial Tribunals (Extension of Jurisdiction) Order (Northern Ireland) 1994 states as follow:-

“An industrial tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented –

(a)	Within the period of three months beginning with the effective date of termination of the contract giving rise to the claim; or

(b)	………………….

(c)	where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.”

23. 	The circumstances in which a tribunal can extend the time for a claim to be lodged are therefore the same as for a claim of unfair dismissal and the principles set out above are also applicable in respect of a claim of breach of contract.

Sex discrimination

24.  	Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 states as follows:-

“76.—	(1) Subject to Article 76A, an industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of -

(a)	the period of three months beginning when the act complained of was done; 
.......

(5) 	A court or 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”.

25.  	It has been held that the “just and equitable” formula gives the tribunal “a wide discretion to do what it thinks is just and equitable in the circumstances….they entitle the tribunal to take into account anything which it judges to be relevant”: Hutchinson v Westward Television Ltd 1977 IRLR 69.  It is clear that the discretion under the “just and equitable” formula is wider than that given to tribunals under the “not reasonably practicable” formula.  However, it has also been held that the onus is always on the claimant to convince the tribunal that it is just and equitable to extend time since “the exercise of discretion is the exception rather than the rule” – Robertson v Bexley Community Centre 2003 EWCA Civ 576.

Conclusions

Unfair dismissal

26.  	The claimant’s representative contended that this was a case where there was no effective date of termination.  The tribunal did not accept this argument.  The claimant accepted under cross-examination that when she started with her new employer, the respondent was no longer her employer.  Accordingly, the tribunal found as a fact that (at the latest and giving the claimant the benefit of any doubt) the claimant’s employment with the respondent ended on 15 September 2015.  The claimant’s claim was not lodged until 31 May 2016, that is more than 8 months later.

27.  	At all relevant times, the claimant was a trainee solicitor and she accepted that she was aware of her right to bring a claim of unfair dismissal and of the time limits relating to such a claim.  The claimant’s evidence was that she did not bring her claim within the primary time limit of three months because she was hoping that the grievance she had lodged with the respondent would be resolved.
 
28.  	It was clear to the tribunal from the claimant’s evidence, and particularly the concessions she made under cross-examination, that the claimant had essentially made a conscious choice not to lodge a claim of unfair dismissal before the end of May 2016.  This was close to 1 year after the date when she had last worked for the respondent and more than 8 months after she began working for her new employer.  Other than her choice to wait and see what happened with her grievance, the claimant was unable to point to any other factor or obstacle which prevented her from lodging her claim within the primary time limit.  Therefore, in line with the Bodha case, there were no special facts which might persuade the tribunal that it was not reasonably practicable to complain to the tribunal within the time limit.

29.  	On the basis of the primary facts found by it, the tribunal has concluded that it was reasonably practicable for the claimant to lodge her claim within three months of the termination of her employment with the respondent.  The claimant simply chose not to do so.  The claimant’s claim of unfair dismissal was therefore lodged out of time and the tribunal therefore has no jurisdiction to hear this claim.

30.  	Further and in the alternative, if the tribunal is incorrect in the conclusion set out in the previous paragraph, the tribunal considered whether the claimant lodged her claim within a reasonable time after the expiry of the primary time limit.  On 16 February 2016, the claimant’s representative wrote to the respondent’s then representative referring to an intention to lodge tribunal proceedings if the claimant’s claims could not be settled.  In the event, a further period of more than 3 months then passed before the claim was lodged.  The tribunal considers this further delay to be unreasonable.  Therefore, even if the tribunal had been satisfied that it was not reasonably practicable for this claim to be lodged on time, the tribunal would have held that the claim was not then lodged within a further time which the tribunal considers reasonable.  Accordingly, the claim of unfair dismissal would have been held to be out of time on this basis.

Unlawful deductions of wages

31.  	The claimant brought various monetary claims by way of a claim of unlawful deductions of wages.  It was agreed by the parties, and the tribunal found as a fact, that any sums deducted by the respondent were effectively deducted at or shortly after the termination of the claimant’s employment with the respondent, that is around 15 September 2015 (at the latest).  

32. 	As with the claim of unfair dismissal, the tribunal has concluded that it was in fact feasible for the claimant to lodge her claim of unlawful deductions within the primary time limit.  She simply chose not to do so.  There was no particular factor which prevented or event made it difficult for the claimant to bring the claim on time.

33. 	Therefore, the tribunal has determined that the claim of unlawful deductions was lodged out of time and the tribunal has no jurisdiction to hear this claim.

34.  	Further and in the alternative, by February 2016, it was clear that the claimant had fully formulated her monetary claims in a Schedule of Loss and was at that stage contemplating lodging a tribunal claim.  A further period of more than 3 months then passed before the claim was actually lodged.  In the circumstances therefore, the tribunal has concluded that the claimant failed to lodge the claim within a reasonable period after the expiry of the primary time limit.

Breach of contract

35.  	For the reasons outlined above in respect of the claims for unfair dismissal and unlawful deductions, the tribunal likewise has concluded that the breach of contract claim is out of time and the tribunal has no jurisdiction to determine the claim.  

Sex discrimination

36. 	In respect of her claim of sex discrimination, the claimant accepted that the last act of alleged sex discrimination occurred on 16 June 2015 and the tribunal accordingly made a finding of fact to this effect.  Therefore, the primary time limit for a claim in respect of this act expired on 16 September 2015.  This claim was not lodged until 31 May 2016, that is some 8 months after the expiry of the primary time limit and close to one year after the final alleged discriminatory act. 

37.  	The tribunal was mindful that it has a very wide discretion to extend time in respect of this claim.  The tribunal considered all the relevant factors.  In this case, the claimant’s explanation for the delay in lodging the claim was essentially that she had chosen to wait and see what would happen in respect of her grievance which included her complaints of sex discrimination.  In relation to the claimant’s state of knowledge, the claimant was at all relevant stages a trainee solicitor and accepted that she was aware of her rights to bring a claim and that there were time limits in respect of such a claim and that she knew what those time limits were.  The claimant also had the benefit of the advice of a qualified legal representative from at least February 2016 onwards.  It was also clear that a claim to the tribunal was very much in the contemplation of the claimant and her representative in February 2016.  There was no other factor which prevented or made it difficult for the claimant to bring her claim at an earlier stage.  

38. 	On balance and having carefully weighed up all the relevant factors, the tribunal is not persuaded that this is a case where it would be just and equitable to extend the time for lodging the claim.  The tribunal has therefore determined that the claim of sex discrimination was lodged significantly out of time and the tribunal has no jurisdiction to hear this claim. 

39. 	Since the claimant’s claims are all out of time, they should be dismissed accordingly. 

Employment Judge:

Date and place of hearing: 	20 October 2016, Belfast.

Date decision recorded in register and issued to parties: