Donaghy v Qualitrol Instruments Limited [2013] NIIT 02058

THE INDUSTRIAL TRIBUNALS

CASE REF: 2058/12

CLAIMANT: Conleth Donaghy

RESPONDENT: Qualitrol Instruments Limited

DECISION ON A PRE-HEARING REVIEW

It is the decision of the tribunal that it would have been reasonably practicable for the claimant to have brought his claims in respect of constructive unfair dismissal and breach of contract within the period of three months set down in the Employment Rights (Northern Ireland) Order 1996 in Article 145(2)(a) and Article 55(2) respectively.

Constitution of Tribunal:

Chairman (sitting alone): Ms W A Crooke

Appearances:

The claimant appeared in person with the assistance of Mr Robert McKeavney in the capacity of “Mackenzie friend”.

The respondent was represented by Ms Rachael Best, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

Preliminary Matters

1. With the agreement of the parties the title of the respondent was amended to be Qualitrol Instruments Limited.

Sources of Evidence

2. The claimant gave evidence on his own behalf. The respondent did not give any oral evidence.

The Nature of these Proceedings

3. This matter came before the tribunal by way of a pre-hearing review to deal with the following issue:-

“Whether the claims of constructive unfair dismissal and breach of contract were within the statutory time limits of three months and, if not, whether time should be extended on the ‘reasonably practicable’ test”.

The Relevant Law

4. The relevant law in respect of the time periods for claims of breach of contract and constructive unfair dismissal are contained in Article 55(2) and Article 145(2)(a) of the Employment Rights (NI) Order 1996.

The Facts

5. The claimant was employed by the respondent as a product manager based in Belfast (but with the requirement for travel worldwide) from 4 January 2010 to 15 July 2012. The claimant was suffering stress and anxiety caused by events in the workplace. These came to a head in or around 10 June 2012 with the claimant suffering agitation and high blood pressure. The claimant considered he could not work for the respondent any further and resigned.

6. It was agreed between the parties that the claimant’s last day of work was 15 July 2012 and this was the effective date of termination of the claimant’s contract of employment. It was agreed between the parties that as the claimant had lodged his claim with the Office of the Industrial Tribunals and Fair Employment Tribunal in Belfast on 16 October 2012, he was effectively one day outside the three month period provided for in the legislation.

7. When he resigned the claimant was elated and thought that a weight had been lifted from him in the immediate aftermath of his resignation. However these feelings of elation soon switched to him being agitated and short tempered with his children and, as he said in his evidence, under a “dark cloud”. He was persuaded to seek professional help and commenced seeing his General Practitioner in or around 31 August 2012, and received treatment. While his mood did not immediately improve he was able to put in a detailed written grievance to the respondent with draft proceedings attached on 5 October 2012. He took legal “advice” from his cousin who is a Human Resources Director in the jurisdiction of England and Wales and, gradually, from speaking to other people, found out that other people also had similar experiences and had been able to seek redress. He chose to look into what remedies were available to him. He must have done so at some time between 1 September and 4 October 2012 as he was able to present his grievance and draft proceedings on 5 October 2012. This was still within the time limit in the legislation. There was no reason given as to why the claimant was not able to present his claim to the Industrial Tribunals in Belfast at any time between 5 and 15 October 2012. In the event, his claim was presented in England and Wales on the last day of the period being 15 October 2012. He was told by the Industrial Tribunals in that jurisdiction that his claim should be presented to the Industrial Tribunals in Northern Ireland virtually immediately and he duly did so on 16 October 2012. This was one day out of time.

Conclusion

On the issue of whether or not it was reasonably practicable for the claimant to present his claims in time.

8. In reaching the decision in this matter the tribunal has had regard to the following cases of:

a. Walls Meat Co Limited v Khan [1978] IRLR499 in which Lord Denning said:

“It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and they must take the consequences”.

b. Palmer and Saunders v Southend-on-Sea Borough Council [1984] 1 ALL ER945 in which Lord Justice May said:

“We think that one can say that to construe the words ‘reasonably practicable’ as the equivalent of ‘reasonable’ is to take a view that is too favourable to the employee. On the other hand, ‘reasonably practicable’ means more than merely what is reasonably capable physically of being done – different, for instance, from its construction in the context of the legislation relating to factories: … Perhaps to read the word ‘practicable’ as the equivalent of ‘feasible’ as Sir John Brightman did in Singh v Post Office [1973] ICR437 and to ask colloquially and untrammelled by too much legal logic – ‘was it reasonably feasible to present the complaint to the [employment] tribunal within the relevant three months?’ is the best approach to the correct application of the relevant sub-section.”

In this case Lord Justice May went on to list a number of considerations which might be investigated –

As related to this case

The manner of and reason for the dismissal.

This is not relevant in this case as the employee resigned.

Whether the employer’s conciliation machinery had been used.

This did not happen in this case.

The substantial cause of the claimant’s failure to comply with the time limit.

failur

In this case the claimant did appear to have a mental health difficulty in and around the end of his employment with the respondent but we are unable to find that this is a substantial cause of the claimant’s failure to comply with the time limit, as by 5 October 2012 he had presented a detailed written grievance and draft proceedings to the respondent. Furthermore in the respondent’s response to the claimant of 12 October 2012 it did highlight the question of what jurisdiction the claim should be brought in. The tribunal considers that while this falls short of telling the claimant precisely what to do, as the respondent is not under any duty to make the claimant’s case for him, it did at least flag the question of jurisdiction to the claimant as a matter to be considered.

Whether there was any physical impediment preventing compliance such as illness or a postal strike.

In this case while we find that the claimant was ill we are unable to find out that this was the cause of him failing to observe the time limit.

Whether and if so, when the claimant knew of his rights.

Plainly from his evidence the claimant did know of his rights to bring a claim for constructive unfair dismissal and breach of contract as his draft proceedings were sent to the respondent on 5 October 2012. It is notable that the respondent responded to the grievance by a letter dated 12 October 2012 and if the claimant had acted immediately there on he could still have been in time to bring his claim within the appropriate time limit.

Whether the employer had misrepresented any relevant matter to the employee.

There was no evidence that this was the case.

Whether the claimant had been advised by anyone and the nature of any advice given.

The claimant said that he took legal “advice” from his cousin who was a Human Resources Director in the jurisdiction of England and Wales. The claimant did not say that she had advised him about the question of the time limit saying that he had also researched the matter on the internet and had not realised that he should bring the matter within the jurisdiction of Northern Ireland. Although the claimant was unclear in his evidence about how much he knew about time limits, from the fact that he acted immediately he was informed by the Industrial Tribunals in England and Wales that he had lodged his proceedings in the wrong jurisdiction, to then lodge his proceedings in the correct jurisdiction the tribunal considers it more likely than not on the balance of probabilities that the claimant had knowledge of the issue of time limits and the need to take urgent action to correct his error.

c. Schultz v Esso Petroleum Company Limited [1999] 3 ALL ER 338. In this case the claimant was physically capable of giving instructions to his solicitor for the first seven weeks of the three month period, but was too ill to do so for the last six weeks. The Court of Appeal overturned the decision of the Employment Tribunal and the Employment Appeal Tribunal saying that it was reasonably practicable to comply with the time limit in that case. Potter LJ stated:

“In a case of this kind, the surrounding circumstances will always include whether or not, as here, the claimant was hoping to avoid litigation by pursuing alternative remedies. In that context, the end can be achieved, if not so much by the immediate issue of proceedings, as issue of proceedings with some time to spare before the end of the limitation period.”

9. In the case before the tribunal, whilst the aim of the claimant may well have been to avoid proceedings by issuing a grievance, his period of illness was clearly in the first six to seven weeks of the three month period and in the second part of that period his health was plainly picking up (as evidenced by his draft proceedings). This shows that not only was the claimant able to settle his mind to drafting the proceedings but also that he was open to the very fact that the matter might have to be resolved by proceedings. In the Schultz case, the Court of Appeal is stressing that although the overall period of time will be considered, “attention within the ordinary way focuses upon the closing rather than the early stages”. In this case, in the closing stages of the period the claimant was able to take action and when he found that he had lodged his proceedings in the wrong jurisdiction, was able to take action immediately to correct his error. For all of the foregoing reasons the tribunal finds that it was reasonably practicable for the claimant to lodge his claim within the period of three months and consequently his claims for constructive unfair dismissal and breach of contract are dismissed. The question of the reasonableness of the time within which the claim was actually lodged therefore does not arise.

Chairman:

Date and place of hearing: 24 January 2013, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Donaghy v Qualitrol Instruments Limited [2013] NIIT 02058_12IT (07 February 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/2058_12IT.html Cite as: [2013] NIIT 02058_12IT, [2013] NIIT 2058_12IT

Industrial Tribunals Northern Ireland Decisions