THE INDUSTRIAL TRIBUNALS
CASE REF: 1206/03
CLAIMANT: Deborah McKenna
RESPONDENTS: 1. Home First Community Trust
2. Rabb McKay
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant's claim of sex discrimination is outside the statutory time limit provided and in all the circumstances of the case it is not just and equitable to extend the time for the complaint to be lodged.
Appearances:
The claimant was represented by Mr D Murray, of Unison.
The respondents were represented by Ms S Owens, Solicitor, of Brangam Bagnall & Company, Solicitors.
- It was common case that the claimant was employed as a Care Assistant with the respondent Trust. She informed her manager in May/June 2002 that she was pregnant and her baby was born in January 2003. She stated that she had difficulties with some of the duties whilst she was pregnant. She complained to Mr McKay and the tribunal accepted that he did give her lighter duties to perform, but they did not continue throughout the whole of her pregnancy. The tribunal accepted that she complained to her union representative who took her case to Mr McKay. She took annual leave from 27 November 2002 and then went on maternity leave and she did not return to employment. The originating application was lodged on 28 April 2003.
- The respondent in its notice of appearance submitted that the application was outside the three month time limit. The respondent drew attention to the fact that the claimant did not complain formally to the Trust and she did not complain to any of the Harassment Advisers. The claimant agreed that she never put in a formal complaint and did not contact the Harassment Advisers.
- The main thrust of the claimant's case is that she only became aware that she might have a possible claim of sex discrimination when she went to take advice from a solicitor in April 2003 about other matters not connected with her employment and that she acted swiftly thereafterwards.
- The tribunal is aware that in cases of sex discrimination the extension allowed to the tribunal is 'if in all the circumstances of the case it considers that it is just and equitable to do so'. However the onus is on the claimant to convince the tribunal that it is just and equitable to extend time, rather than just giving it to claimants who are outside the limit. The tribunal is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension and to have regard to all the other circumstances. In particular:-
(a) the length of and reasons for the delay;
(b) the extent to which the cogency of the evidence is likely to be effected by the delay;
(c) the extent to which the parties sued had co-operated with any requests 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) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.
- The tribunal has considered that the claimant was concerned about her workload and complained to her trade union official. She followed that up and the trade union official acted on her behalf to reduce the workload. There was no evidence produced by the claimant to show that at any time she was either mentally or physically unfit to seek professional advice if she was dissatisfied with the advice given by her union. She left her employment after going on maternity leave and the reason for seeking professional advice had nothing to do with any potential claim that she was thinking about in relation to her employment. It would appear that it was the solicitor who gave her the idea that there may be a possible cause of action. In other words, it was not sex discrimination which came to mind when she went to see a solicitor. It is three years since any possible claim of action could have been occasioned and the tribunal has accepted the submission from the respondents that in fact when the claimant requested lighter duties they were given to her. It is important to note that at no time did the claimant make a formal complaint to her employers about any harassment by Mr McKay or the Trust. Although the claimant states in her witness statement that she was very unhappy with the way she had been treated at work and stated that she had no idea it might have been against the law, the tribunal accepts that she took no steps whatsoever to establish this position when she left work from the Trust and that there was no valid reason put forward as to why she did not do so.
- It is a balancing exercise to be performed by the tribunal when looking at discretion and to do what it considers is just and equitable in the circumstances. Having taken all the facts into account in this case, the tribunal finds that it should not exercise its discretion and the claim presented by the claimant is out of time and is therefore dismissed.
Vice President:
Date and place of hearing: 15 August 2005, Belfast
Date decision recorded in register and issued to parties:
