Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REF:    84/13 FET

 

 

CLAIMANT:                                               Michael Mooney

 

RESPONDENT:                                       Police Service of Northern Ireland

 

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that the claimant’s claim is out of time and that it would not be just and equitable in all the circumstances to extend the time-limit.

 

 

Constitution of Tribunal:

 

Employment Judge  (Sitting alone):   Miss E McCaffrey

 

 

Appearances:

 

The claimant was represented by Mr N Gillam of Donnelly and Kinder Solicitors.

 

The respondent was represented by Mr M McEvoy, Barrister-at-Law, instructed by Crown Solicitor's Office.

 

1.         This was a Pre-hearing Review to consider whether the claim lodged by the claimant in this case, or part of it is out of time and if so whether time should be extended to allow the claim.

 

2.         In determining this matter, I heard evidence from the claimant and from his wife, Mrs Siobhan Mooney.  I also considered papers opened to me by the representatives including an e-mail sent by Mrs Mooney to the Equality Commission on 11 July 2013, a draft claim form completed on 11 July 2013 and a printout of the claimant’s medical records from his general practitioner from late 2012 to the end of 2013.  I also heard clear and concise submissions from both representatives for which I am most grateful.

 

3.         The claimant raised a claim that he had suffered unlawful discrimination and religious harassment at work on 17 April 2013.  On the day of the incident, he left work and attended his Doctor the following day.  The claimant was on medication including antidepressants for some time after the incident.  His wife on his behalf made contact with the Equality Commission to obtain some information regarding the possibility of bringing a claim.  There was however an ongoing Police investigation.  The claimant and his wife were advised by the Equality Commission of the option of going to the Fair Employment Tribunal in relation to this matter and they were made aware of the relevant time-limit of three months for initiating a claim.  The claimant felt he was not up to going to an Industrial Tribunal in the first instance and it was decided that they would wait for the Police report before deciding what to do.

 

            Once it became aware that the Police report would not be available for three to four months, the claimant and his wife decided to progress the claim to the Fair Employment Tribunal.  It was Mrs Mooney’s evidence that she completed the form and had it signed by her husband on 11 July 2013.  The time-limit was due to expire on 17 July 2013.  At that stage, the form was sent to the Equality Commission for Northern Ireland with a covering e-mail addressed to the case worker who had been dealing with the matter.  Mrs Mooney was clearly aware of the fact that he was going on holiday as she refers to this in her e-mail.  The ET1 form is attached and she asked if there was anything further to be done.  Mrs Mooney agreed in cross-examination that she was aware of the three month time-limit and that the form should be lodged by 17 July.  However, after her e-mail of 16 July, neither she nor the claimant made any further contact with the Equality Commission until 22 July when she telephoned to check if the form had been received.

 

            At this stage, a member of the Equality Commission staff told her that the form had been sent to the wrong place and that Paddy Conway (her usual contact) was on leave.  The claimant’s wife lodged the ET1 with the Office of the Industrial Tribunals and the Fair Employment Tribunals the same day.  The claimant’s wife agreed in
cross-examination that she had completed the form and had her husband sign it on 11 July when he had dated it.  She did not appear to have noticed below the space for signing the form that there was a clear instruction on the same page to send the form to the Office of the Industrial Tribunals at the address given on the form.

 

 

REASONS AND DECISION

 

4.         The relevant law in relation to this matter is set out in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order (1998) which provides as follows:-

 

                        “Article 46(1) Subject to paragraph (5)... 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...

 

                        (5)       A Court or 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.”

 

5.         Mr Gillam, for the claimant, effectively argued that this was a mistake made by the claimant’s inexperienced wife who thought that she was sending the claim form in time to the correct location.  He argued that when Mrs Mooney realised her error, she promptly made amends by sending the form to the Office of the Industrial Tribunals and the Fair Employment Tribunal.

 

6.         Mr Gillam’s case was that the claimant was unwell at this time and his wife accordingly took on the responsibility on his behalf of preparing the form for his signature and sending it to what she believed to be the correct place.  He referred to the criteria set out in case law and in particular the criteria set out in the Limitation Act 1980 which applies in England and Wales.  He referred me to in the decision of the Employment Appeal Tribunal in British Coal Corporation  v  Keeble [1997] IRLR 336 and also the decision of the Court of Appeal in England and Wales in Robertson  v  Bexley Community Centre [2003] EWCA Civ 576.  I was also referred to the decision of the Court of Appeal in England and Wales in Chief Constable of Lincolnshire Police  v  Caston [2009] EWCA Civ 1298.  In that case, Lord Justice Sedley held “There was no principle of law which dictates how generously or sparingly the power to extend time is to be exercised”.  He emphasised that there was no issue of policy or law but it was a question of “fact and judgment” to be answered case by case.  The factors to which Mr Gillam referred me were:-

 

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

 

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

 

            (c)        the extent to which the parties sued co-operated with a request for information;

 

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

 

            (e)       steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.  It is accepted that there is no legal requirement on the tribunal to go through this list in every case, but it is helpful to refer to it.

 

7.         The main issue which has caused me concern in this case, is that the claimant and his wife clearly had access to proper and accurate advice in good time prior to the expiration of the time-limit in this matter.  They had contacted the Equality Commission, had been advised by them of the circumstances for bringing a claim and had been advised of the relevant time-limit.  Mrs Mooney’s evidence to the tribunal was that it had been decided to wait for the Police report to see what was going to happen.  The claimant then realised it would take three to four months for the Police report to be completed and as Mrs Mooney noticed in her witness statement “this prompted us to go down the tribunal route as we were aware there was a time-limit involved”.  The claimant was still on medication at this stage and in his witness statement referred to his concerns about going to the Industrial Tribunal and whether he would be able to cope with that.

 

8.         Mrs Mooney however completed the form and sent it to the Equality Commission on 11 July.  Her e-mail indicates that she understood Mr Conway of the Equality Commission would be back from leave at this time, but she did not make any contact with the Equality Commission to check that he was back, that form had been correctly received or that everything had been lodged in time until 22 July, after the time-limit expired.

 

9.         I am conscious from the decision in Hutchison  v  Westward Television Ltd [1997] IRLR 69 that the “circumstances of the case” I have to consider in dealing with this matter are the circumstances of the application to extend time and not those relevant to the substantive merits of the complaint.  The substantive merits of the complaint are not at issue in this hearing.

 

10.       The claimant, although he was ill, had the benefit of advice from the Equality Commission and had the benefit of a wife who clearly was seeking to protect his interests in lodging a claim.  Accurate advice had been given to the claimant and his wife regarding the time-limits for lodging a claim and a conscious decision had been taken in the first instance to wait until the Police investigation was complete.  It was only when it was realised that that Police investigation was likely to overrun the time-limit for lodging a claim that a decision was taken to progress the claim to the Fair Employment Tribunal.  At that stage, the claimant’s wife drafted the claim form, read it over to him and the claimant signed it on 11 July, some five days before the expiry of the time-limit.  The problem was that the claimant’s wife lodged the claim form with the Equality Commission rather than the Office of the Industrial Tribunals.  It is difficult to understand how this error came about, given that the signature box for the claim form is above the section in the form which says, “Please return your completed claim form to The Secretary, Office of the Industrial Tribunals and the Fair Employment Tribunal...” and then proceeds to give the address of the appropriate office.  It is also surprising, given that the claimant and his wife were well aware of the importance of the time-limit that Mrs Mooney for the claimant did not check with the Equality Commission that the form had been received by e-mail and lodged in time.

 

11.       Mr Gillam referred me to the case of Benjamin-Cole  v  Great Ormond Street Hospital for Sick Children [2010] ALL ER(D) 73 where it was held that an Employment Judge was wrong to have placed on the claimant responsibility for the fault of an experienced and unqualified legal advisor and to have placed too greater reliance on the fact that the claimant had a remedy against the advisor when in the circumstances there would have no such claim.  This however is a different situation: the advice given had come from a reliable source, namely the Equality Commission and the advice had been accurate.  The difficulty was the failure of the claimant and his wife to act on that advice promptly.  In all the circumstances of this case, I do not believe that it would be just and equitable to extend the time-limit for lodging of the claim.  The claimant had reliable advice but failed to act on it.  Time-limits are there to facilitate legal certainty.  While I accept that the delay was not a lengthy one, that is not the test in this case, it is whether it would be just and equitable in all the circumstances to allow the claimant to proceed.  In a case where the claimant has all the necessary information to enable him to progress his claim in time but fails to do so, I do not believe that it would be just and equitable to extend the time-limit and accordingly the claimant’s claim is dismissed.

 

 

 

 

 

Employment Judge:

 

Date and place of hearing:        March 2014

 

Date decision recorded in register and issued to parties: