THE INDUSTRIAL TRIBUNALS

CASE REF:	1439/17

CLAIMANT:			David Stranaghan

RESPONDENT:		Ryobi Aluminium Casting (UK), Limited

DECISION 

1.	It is the unanimous decision of the tribunal that the claimant did not lodge his claim for unfair constructive dismissal within three months of the effective date of termination of his contract of employment.  He has failed to establish that it was not reasonably practicable for him to do so, and this claim for unfair constructive dismissal is dismissed.

2.	It is the unanimous decision of the tribunal that the claimant did not lodge his claim for discrimination on the grounds of race within three months of the act complained of.  It further is the view of the tribunal that it is not just and equitable in all the circumstances of the case to consider the complaint, and it is dismissed.

Constitution of Tribunal:

Employment Judge:		Employment Judge Browne

Members:				Ms C Stewart
					Ms J McNulty

Appearances:

The claimant represented himself.

The respondent was represented by Ms M McKinley of EEF.

LEGAL ISSUES

1.	The tribunal was required to determine the following legal issues:

“(i) 	Was the claimant unfairly dismissed contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996 in that was there a fundamental breach of contract entitling the claimant to resign and treat himself as dismissed and did the claimant resign on grounds of that breach?

(ii) 	Was the claimant treated less favourably on grounds of his race compared to the Polish worker Pawel Dudek referred to in the claim form?

(iii) 	Has the claimant brought his complaint of constructive unfair dismissal within three months of his resignation/dismissal?

(iv) 	If not, was it not reasonably practicable for him to present his claim within three months of his resignation/dismissal and did he lodge his complaint within a reasonable period thereafter?

(v) 	Has the claimant brought complaint of unlawful direct race discrimination within three months of the act of complained of and if not is it just and equitable to extend time in all the circumstances?”

2.	The relevant law on bringing a claim of the type presented by the claimant under Article 145 of the 1996 Order, dealing with unfair dismissal, makes clear that such claims must be presented within three months of the effective date of termination.  A tribunal does not have jurisdiction to deal with any such claim if it was presented outside that period, unless the tribunal is satisfied that it was not reasonably practicable to do so.  Even if it was not reasonably practicable, the tribunal may not deal with it if it considers that it was not presented within a further reasonable period. 

3.	Article 145 of the Employment Rights (Northern Ireland) Order 1996 (ERO) states:

“ 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.”

4.	The effective date of termination (EDT) of the employment is defined in Article 129 of ERO:

“(a) 	in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,

(b)	in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect...”

5.	Determination of the effective date of termination is a question of fact for the tribunal.

6.	As regards the claimant’s claim of race discrimination, the time limit issue regarding submission of a complaint is contained in Article 65 (1) to (7) of the Race Relations (Northern Ireland) Order 1977:  

“65.—(1) An industrial tribunal shall not consider a complaint under Article 52 unless it is presented to the tribunal before the end of —

(a)	the period of 3 months beginning when the act complained of was done; or

(b)	in a case to which Article 71(7) applies, the period of 6 months so beginning.

(2) [F1subject to paragraph (2A)] A county court shall not consider a claim under Article 54 unless proceedings in respect of the claim are instituted before the end of—

(a)	the period of 6 months beginning when the act complained of was done; or

(b)	in a case to which Article 54(5) applies, the period of 8 months so beginning.

[F1(2A) In relation to an immigration claim within the meaning of Article 54A, the period of six months mentioned in paragraph (2)(a) begins on the expiry of the period during which, by virtue of Article 54A(1)(a), no proceedings may be brought under Article 54(1) in respect of the claim.]

(3) 	Where, in relation to proceedings or prospective proceedings by way of a claim under Article 54, an application for assistance under Article 64 is made to the Commission before the end of the period of 6 or, as the case may be, 8 months mentioned in sub-paragraph (a) or (b) of paragraph (2), the period allowed by that sub-paragraph for instituting proceedings in respect of the claim shall be extended by 2 months.

(4) 	An industrial tribunal or county court shall not consider an application under Article 60(2)(a) unless it is made before the end of the period of 6 months beginning when the act to which it relates was done; and a county court shall not consider an application under Article 60(4) unless it is made before the end of the period of 5 years so beginning.

(5) 	An industrial tribunal shall not consider a complaint under Article 61(1) unless it is presented to the tribunal before the end of the period of 6 months beginning when the act complained of was done.

(6) 	A county court shall not consider an application under Article 62(4) in relation to an undertaking under that Article unless it is made before the end of the period specified in the undertaking by virtue of paragraph (3)(d) of that Article.

(7) 	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…”

7.	Thus, the test for acceptance of a late claim of race discrimination is wider than that of reasonable practicability imposed by the 1996 Order.    

EVIDENCE AND FACTS FOUND 

8.	The claimant started work for the respondent on 15 October 2013 as a machine operator.  This post became permanent and full-time on 10 March 2014.

9.	From 12 October 2015 until 6 January 2016, the claimant was absent from work due to undergoing surgery for a left-side inguinal hernia. 

10.	Upon his return to work, he hoped to be able initially to perform lighter duties than before he went off for his surgery.  This option depended upon the availability of light duties, although this was not always possible.

11.	On 23 February 2016, the claimant developed a groin strain at work, which he claimed was due to unsafe work practice by the respondent in asking him to lift heavy weights above his head height.

12.	The claimant returned to work the same night as he sustained the alleged injury, and managed it by way of painkillers on repeat prescription until 27 September 2016.  In the meantime, a second, right-side inguinal hernia had been diagnosed. 

13.	The claimant was given an appointment to see the respondent’s Occupational Health nurse on 4 October 2016, and her report recommended a return to work on light duties.

14.	The claimant was given three sick-lines by his GP from 27 September 2016 until 14 November, in which the clamant was certified by his GP as being unfit for any work.

15.	The tribunal saw evidence of circulation by Mr Gareth Lynn, the claimant’s line manager, of an email, dated 13 October, requesting notification from all managers of sections of the respondent’s operation of any available light duty posts.  The replies show that no such post was then available, of which outcome the respondent informed the claimant on 27 October 2016.

16.	The respondent on that date asked the claimant if he would be able to run the B6 Clutch Case, as it was one of the least strenuous of the respondent’s work areas, but the claimant declined.  He informed the respondent that he had sought advice from a solicitor, whom he reported had advised him that he should not return to any form of work until he had seen the respondent’s Occupational Health doctor on 9 November 2016.  His solicitor was briefly in correspondence with the respondent about his return to work, in the context of a potential personal injury claim arising from the incident in February 2016.

17.	The claimant saw the respondent’s Occupational Health doctor on 9 November, and her report, recommending a return to work on lighter duties, was received by the respondent on 14 November 2016.

18.	In the meantime, on 11 November 2016, the claimant verbally informed Ms Catherine Pijl, the respondent’s Senior Human Resources Officer, that he would be resigning.  He explained that he could not afford to be not working, as he by that time was only in receipt of statutory sickness pay.  In the absence of any available light duties, he therefore would be unable to return to paid employment.  Ms Pijl gave evidence that she had asked him to reconsider his decision.  The client stated in his evidence that he had told Ms Pijl merely that he was considering resigning.  In any event, the claimant subsequently sent a letter of resignation to the respondent.

19.	The claimant’s written resignation, dated 11 November 2016, was given to the respondent  by the claimant on 14 November 2016, at a meeting between him, Ms Pijl and Ms Gemma Neil, Human Resources Officer for the respondent.  The claimant at that meeting was accompanied by a fellow employee, Mr Andrew Costello.  The claimant at that meeting confirmed that he did not want to wait to see the Occupational Health doctor’s report.  He also asked to clear out his locker, which he did on 14 November 2016, and, on 21 November 2016, the claimant requested his P45.

20.	The respondent wrote to the claimant on 24 November 2016, enclosing a copy of the Occupational Health report, and inviting the claimant to a meeting on 6 December 2016, to discuss it, to which he agreed.  That meeting took place, but ended with him confirming his resignation.  The claimant during that meeting stated that it was unfair that the respondent had not found light duties for him, alleging that it had been able to for Mr Ryan Edgar.  The respondent stated that Mr Edgar was in a completely different position from that of the claimant.

21.	The claimant in his application to the tribunal, received by the tribunal on 24 February 2017, stated that his last day of work for the respondent was on 30 November 2016, and that he started full-time, permanent employment with another employer on 1 December 2016.  He also claimed in his application that a Polish worker, later named by him as Pawel Dudek, had been allowed to do light duties, whereas the claimant had not been.

22.	The respondent received information from the claimant’s new employer, which the claimant did not challenge.  That information showed that he had applied for his new job on 2 November; that he was interviewed and offered the job on 8 November, which he accepted on the same date.  The claimant then started his new full-time, permanent job on 16 November 2016.

23.	The respondent had never formally accepted the claimant’s resignation, and the evidence clearly demonstrated that the parties were still going through a process of engagement with each other, up until the respondent’s letter to the claimant of 14 December 2016.  That letter accepted the claimant’s resignation letter received on 14 November 2016, treating it as effective of that date.  The claimant’s case is that his effective date of termination was 30 November 2016.

24.	The claimant told the tribunal that he needed to start earning money again, as he had substantial family and financial commitments.  The tribunal readily accepted the claimant’s evidence as to that, and of the severe mental toll his financial situation had on him. 

25.	Whilst the tribunal readily empathises with someone facing such a dilemma, the sole function of the tribunal is to make a decision as to the appropriate legal interpretation of the law and the facts.

26.	The tribunal unanimously is of the view that the claimant’s effective date of termination was, at the latest, 14 November 2016.  This was the culmination of his own thoughts as expressed to Ms Pijl, either expressly or implicitly.  That thinking was reinforced by the agreed sequence of events regarding his acceptance of new employment, which commenced on 16 November.  Both jobs were permanent and full-time, so he could be employed by one or other, but not by both.  His resignation on 14 November 2016 was a clear indication that he had chosen to take up the new employment, severing all contractual ties with the respondent.

27.	The claimant told the tribunal that he went through what in fact was a charade of engagement with the respondent between 14 November 2016 up until 6 December 2016, as he was hopeful of being able to return to work there.  Whilst that technically might have been feasible, he still would have had to resign from his new employment in order to return.  The clear legal position was that he then had a contract of employment with his new employer; he had no such contract with the respondent.

28.	In view of the tribunal’s determination that the effective date of termination of the claimant’s employment with the respondent was 14 November 2016, his application to the tribunal received on 24 February 2017 was out of time by ten days.

29.	As regards the claim of unfair constructive dismissal, the test, where a complaint is presented more than three months after the effective date of termination, as  set out in Article 145 (2) (b) of the 1996 Order, is whether or not is was reasonably practicable to do so.  The claimant’s adherence to 30 November 2016 as the effective date of termination has been rejected by the tribunal, and he made no alternative argument that, in the event of such a finding, there were circumstances which could support a finding that it was not reasonably practicable for him to present a complaint in time.  The tribunal considered it appropriate to examine the circumstances, in the event that such circumstances might exist.

30.	The tribunal notes that the claimant engaged solicitors to act on his behalf in relation to a potential negligence claim against the respondent, resulting from his allegations of an injury at work. 

31.	The claimant at no time referred in evidence to seeking any advice from them as to the issues in the case before this tribunal, either before or after his resignation, although his solicitors were in correspondence with the respondent only two weeks before his resignation.  It is also of note that the issues discussed by them were the same as those which formed the basis of the claimant’s complaint that he had been unfairly constructively dismissed.

32.	It is a question of fact in each case whether it was reasonably practicable to present a claim in time.  The Court of Appeal in Palmer v Southend-on-Sea Borough Council [1984] 1 All ER 945, [1984] 1 WLR 1129, [1984] ICR 372 was able to offer no more specific test than that the tribunal should ask whether it was 'reasonably feasible' to present the claim in time – a test which May LJ acknowledged was easier to state than to apply.  The general approach to be adopted was stated by the Court of Appeal in Marks & Spencer plc v Williams-Ryan [2005] EWCA Civ 470, [2005] IRLR 562 to be that the statute should be given a liberal interpretation in favour of the employee.

33.	Whilst in Theobald v The Royal Bank of Scotland plc [2007] All ER (D) 04 (Jan), the EAT suggested that such a conclusion is against the weight of other authority, the emerging view seems to me to be that the wider approach is appropriate, depending of course upon the individual facts of each case.

34.	It seems to the tribunal that, even adopting a more liberal interpretation of the legislation, the claimant in this case is unable to satisfy the tribunal that it was not reasonably practicable for him to present a complaint because of ignorance of the right to claim for unfair constructive dismissal.  The situation in this case appears to the tribunal to be somewhat different from the usual scenario of an employee being told, for example, to leave his or her employment.  It remains the case however that the claimant and his solicitors ought reasonably to have known that losing his job because of the alleged behaviour of the respondent was something which required separate proceedings to be brought for unfair dismissal.

35.	If the claimant can properly be deemed reasonably to have known of his right to present such a complaint, even in a general sense, then it will probably be held that it was reasonably practicable to present a complaint within the time limit, whether or not he in fact knew of the specific right (see Porter v Bandridge Ltd [1978] 1 WLR 1145, [1978] ICR 943).  However it is always necessary for the tribunal to consider what the claimant knew, and whether his lack of relevant knowledge was reasonable.

36.	If the claimant had knowledge of his rights, there arises an obligation upon him to seek information or advice about the enforcement of those rights (Trevelyans (Birmingham) Ltd v Norton [1991] ICR 488), and accordingly ignorance of time limits may well be held not to be reasonable if the claimant was aware of the right to claim but made no further enquiries about how or when to do so: Reed in Partnership Ltd v Fraine (UKEAT/0520/10). 

37.	The tribunal unanimously concludes that the circumstances of his departure, on the claimant’s version of events, must have put him on notice that there was something so untoward about it that he at the very least ought to have sought relevant professional advice.  That view is reinforced by the fact that at the relevant time, his solicitors were in contact with the respondent, arising from the situation which he within two weeks used as the basis for his resignation.

38.	There was no evidence from the claimant that he had sought specific advice from his solicitors regarding his resignation.  Even if he had received incorrect advice, the question whether a claimant is fixed by the error of his or her adviser is sometimes said to turn on whether the adviser concerned was a 'skilled adviser'.  That is a question of fact, depending on the particular circumstances of the case: Theobald v Royal Bank of Scotland plc [2007] All ER (D) 04 (Jan).  The EAT in that case also made the distinction between instructing an adviser to act on the employee's behalf, in which case it will usually be held to have been reasonably practicable to present the claim in time, and taking advice from an adviser but retaining control over the submission of the claim, where the fault of the adviser in giving erroneous advice will not count against the claimant; however this distinction was rejected by the EAT in the subsequent case of T Mobile (UK) Ltd v Singleton [2011] All ER (D) 12 (May), where it was held that the mere taking of advice from a solicitor was sufficient to fix the claimant with the solicitor's negligence in failing to alert him to the correct time limit.

39.	Whilst the tribunal is slow to deprive a claimant of a means of redress, it is not satisfied that there is a sufficiently cogent reason to set aside the clear wording of the statute.  His complaint for unfair constructive dismissal is therefore dismissed.

40.	As regards the new claim for race discrimination, the tribunal unanimously concludes that it too is out of time.  It then becomes necessary to decide whether or not it is just and equitable to admit it.

41.	In Hutchinson v Westward Television Ltd (1977) ICR 279, the phrase "just and equitable", in the context of [Article 65 (1) and (7) of the Race Relations (Northern Ireland) Order 1977]   was considered.  The EAT emphasised that those words gave the industrial tribunal a very wide discretion and, moreover ". . . deprecated [the] very simple wide words becoming encrusted by barnacles of authority".  As demonstrated by the case law, the onus of upsetting the exercise of such discretion is a heavy one, depending as it does on demonstrating that the tribunal had erred in law, or was perverse.

42.	The import of "just and equitable” was again considered in Trusthouse Forte (UK) Ltd v Halstead, EAT, July 29, 1986 (213/86), where the applicant claimed both unfair dismissal and discrimination on the ground of race.

43.	Mrs Halstead, who was registered disabled (a green card holder) suffered from sickle-cell anaemia and in consequence was absent from work for long periods.  She was eventually dismissed on June 3, 1985.  She determined to claim both unfair dismissal and race discrimination – the latter because only people of Afro-Caribbean extraction suffer from sickle-cell anaemia.  Accordingly, she went to Brixton Advice Centre.  The solicitor there wrote to THF on her behalf, setting out the general nature of her unfair dismissal claim, but failing to mention any potential discrimination claim.  Though Mrs Halstead subsequently visited the centre on a number of occasions, the unfair dismissal and race discrimination applications were not received by the Central Office of Industrial tribunals until September 13 – 11 days out of time.

44.	At a preliminary hearing on the jurisdiction issue, the tribunal found that it had not been reasonably practicable to present the unfair dismissal application out of time.  Equally, they held that it would be just and equitable to hear the out of time race discrimination complaint.  The employers appealed to the EAT.

45.	On the issue of the unfair dismissal complaint, the EAT allowed the appeal.  The industrial tribunal had made a mistake in law by considering the reasonableness of Mrs Halstead's conduct, rather than whether it had been reasonably practicable to present the application in time.  There was the clearest possible principle of law established by the Court of Appeal in Dedman v British Building and Engineering Appliances Ltd (1974) 1CR 53, that "the sins of the negligent or incorrect adviser do have to be visited on the applicant for the purposes of considering . . . what is reasonably practicable".  The inefficiency of the advice centre was not a valid excuse.  There was no reason why the application could not have been presented in time.

46.	However, considering the discrimination complaint and the efficacy of the time limit escape clause, the EAT said that the phrase "just and equitable" gave the tribunal, following Hutchinson, a very wide discretion.  Looking at the industrial tribunal's reasons, and its summary of evidence, the EAT was not satisfied that the tribunal had reached a perverse conclusion in permitting the complainant to proceed.

47.	The situation in this case is that the claimant, during the process up to the meeting on 6 December 2016, mentioned only that Mr Ryan Edgar had been permitted to work on light duties.  The substance of his race discrimination complaint is that Mr Pawel Dudek, a Polish national, was allowed to return to work after injury and perform light duties.  The claimant therefore relies upon his allegedly less favourable treatment by the respondent when compared to that of Mr Dudek.

48.	The unchallenged evidence from the respondent was that this occurred in early December 2016, by which time the claimant has been found by the tribunal to have resigned from his employment and taken up his new job elsewhere.  The tribunal therefore considers that any action by the respondent towards Mr Dudek is outside the scope of the tribunal to consider.  The tribunal can find no other evidence to warrant exercise of its discretion to determine the complaint of race discrimination on the basis that it is just and equitable to do so.  That complaint is also dismissed.

Employment Judge:

Date and place of hearing:	11 October 2017, Belfast.

Date decision recorded in register and issued to parties: