Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  101/14

 

 

 

CLAIMANT:                          Catherine Reynolds

 

 

RESPONDENT:                  Bombardier Aerospace, Shorts

 

 

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

 

The claimant’s claim was out of time; and the tribunal decided it was not reasonably practicable for the claimant to have presented her claim in time; but the claimant did not bring her claim within a further reasonable period, thereafter.  The tribunal therefore does not have jurisdiction to consider and determine the claimant’s claim. 

 

Constitution of Tribunal:

Employment Judge (sitting alone):       Employment Judge Drennan QC

 

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Ms K McCormick, Solicitor, of Engineering Employers’ Federation Northern Ireland.

 

Reasons

 

1.1       The claimant presented to the tribunal on 2 January 2014 a claim for unpaid holiday pay against the respondent.  The respondent, in a response presented to the tribunal on 11 February 2014, denied liability for the said unpaid holiday pay.  At a Case Management Discussion on 28 February 2014, as set out in the Record of Proceedings dated 3 March 2014, a Chairman of the Tribunals stated:-

 

“1         The claimant has brought a claim for unpaid holiday pay against the respondent.  This alleged non-payment took place in the year 2006.  It is the claimant’s case that she only became aware of this around November 2013.

 

2(i)      On the application of the respondent the matter will be listed for a   pre-hearing review on a time-point.  The issue for determination by the tribunal is as follows:-

 

“Whether the tribunal has jurisdiction to entertain the claimant’s claim having regard to the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 regarding the time-limit for presenting

her claim?”

 

(ii)      Furthermore, in the event that the tribunal decides to extend time for the claimant to bring her complaint the respondent will be making an application that the claimant should pay a deposit of an amount not exceeding £500.00 as a condition of being permitted to continue with these proceedings on the ground that her claim has little reasonable prospect of success.

 

3(i)      The pre-hearing review will take place at:-

 

                                                10.00 am on 12 March 2014

 

That date had already been agreed for a hearing.  The parties agreed that a pre-hearing review could now take place on that date, notwithstanding that 14 days’ notice had not been given.

 

 ... .”

 

            Relevant Notice of Hearing for the pre-hearing review to determine the said                   time-issue was issued to the parties on 5 March 2014.  In addition, a Notice of Hearing for a Deposit Order pre-hearing review was also issued to the parties on 5 March 2014. 

 

1.2       At this hearing, I heard evidence at the pre-hearing review, from the claimant in relation to the said time-issue, as set out above.  The respondent did not call any evidence.  I also heard oral submissions by both the claimant and the respondent’s representative at the conclusion of the pre-hearing review, the latter which I found of particular assistance in determining the said time-issue (see later). 

 

            In addition, having regard to the terms of the overriding objective, I also heard the contentions of the claimant and the respondent’s representative in relation to the second issue, referred to in the Record of Proceedings of the Case Management Discussion on 28 February 2014, namely whether the tribunal should make a Deposit Order against the claimant as a condition of her continuing her claim on the grounds that the claim has little reasonable prospect of success.  In view of the decision of the tribunal, as set out above, it was not necessary for me to determine this second issue. 

 

2.1       The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (‘the 1994 Extension Order’), insofar as relevant and material, provides as follows:-

 

                        “Article 7

 

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)       where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which is terminated; or

 

(c)        where the tribunal is satisfied that it was no reasonably practicable for the complaint to be presented within whichever those periods is applicable, within such further period as the tribunal considers reasonable.”

 

Article 7 of the 1994 Order is in similar terms to Article 145 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) in relation to the time-limits for bringing claims of unfair dismissal.  As set out below, Article 145 of the 1996 Order has been the subject of considerable case law both in this jurisdiction and in Great Britain, where Article 111 of the Employment Rights Act 1996 is in similar terms to Article 145 of the 1996 Order.

 

3.1       It was not disputed by the parties that the claimant commenced employment with the respondent on 7 January 1991 and her employment terminated on 20 April 2007.  Further, it was accepted by the claimant that the claimant’s claim for the said unpaid holiday pay, having been presented to the tribunal on 2 January 2014, was therefore out of time and it was necessary for the claimant to apply for an extension of time, pursuant to Article 7 of the 1994 Extension Order.

 

            The statutory test in Article 7 of the 1994 Extension Order involves, in essence, two distinct questions:-

 

                        “(a)      Was it reasonably practicable to present the complaint in time?

 

(b)      If it was not, did the claimant bring the complaint within a further reasonable period?”

 

It has long been established it is for the claimant to prove that it was not reasonably practicable to bring the claim in time and it is a question of fact for the tribunal to decide.  In this context, it always has to be remembered that the test for an extension of time, which applies under the discrimination legislation, potentially affords a tribunal a far wider discretion than in the case of the reasonably practicable extension set out in Article 7 of the 1994 Extension Order (see further Hutchison  v  Westward Television Ltd [1977] IRLR 69 and British Coal  v  Keeble & Others [1997] IRLR 336).  Under the discrimination legislation, a test of ‘just and equitable’ applies.

 

3.2       In Palmer & Saunders  v  Southend-on-Sea Borough Council [1984] IRLR 119, May LJ stated, at Paragraph 125:-

 

“To construe the words ‘reasonably practicable’ as the equivalent of ‘reasonable’ is to take a view too favourable to the employee.  On the other hand ‘reasonably practicable’ means more than what is reasonably capable physically of being done.  ...  In the context in which the words are used in the 1978 Consolidation Act, however inaptly as we think, they mean something between the two.  Perhaps to read ‘practicable’ as the equivalent to ‘feasible’ ... and to ask colloquially and untrammelled by too much legal logic – ‘was it reasonably feasible to present the complaint to the industrial tribunal within the relevant three months?’ – is the best approach to the correct application of the relevant sub-section.”

 

May LJ, in the course of his judgment (which it must be remembered related to a claim of unfair dismissal), set out a number of relevant factors but he emphasised they could not be exhaustive; and he stated they should form a useful starting point and that the tribunal should therefore consider, amongst other things:-

 

“(a)      the manner in which, and the reason for which, the employee was dismissed, including any internal ‘conciliatory appeal procedure’;

 

 (b)      the substantial cause of the employee’s failure to comply with the statutory time-limits;

 

 (c)       whether he knew he had the right to complain that he had been unfairly dismissed;

 

 (d)      whether there had been any ‘misrepresentation’ about any relevant matter by the employer to the employee;

 

 (e)      whether the employee was advised at any material time and, if so, by whom, or; extent of the adviser’s knowledge of the facts of the case and the advice given to the employee;

 

            In Walls Meat Company Ltd  v  Khan [1979] ICR 52, Brandon LJ gave the following guidance:-

 

“The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits such performance.  The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to essential matters.  Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable.  Either state of mind will, further, not be reasonable if it arises from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.”

 

3.3       Harvey on Industrial Relations and Employment Law, Volume 3, Section P1, has emphasised:-

 

“(207)        So, whilst a claimant’s state of mind is to be taken into account, it is clear that his mere assertion of ignorance either as to the right to claim, or the time-limit, or the procedure for making the claim, is not to be treated as conclusive  ...  Moreover, as the Courts pointed out the widespread public knowledge of unfair dismissal rights, it is all the time becoming more difficult for an employee to plead such ignorance successfully (see for example, Riley  v  Tesco Stores Ltd [1980] ICR 323 at 328, 329, 335, Walls Meat Company Ltd  v  Khan, above).  A more lenient attitude was, however, shown in Marks & Spencer PLc  v  Williams-Ryan [2005] EWCA Civ 470, where the claimant, although she knew of the right to claim for unfair dismissal, was ignorant of the time-limit.  That ignorance was excused by the tribunal on the grounds that the employer’s post-termination advice to her as to her rights, whilst referring to the right to make a claim to an Employment Tribunal, did not mention the time-limit, and was thus misleading and that the claimant was under personal pressure to complete a teacher training course.  The tribunal duly gave her the benefit of the escape clause.  The Court of Appeal considered the findings ‘generous’ to her but was not prepared to say that they were perverse (see Paras 37 – 41).”

 

3.4       In view of the particular facts of this case it was also necessary for me to have particular regard to the further paragraphs of Harvey, as set out below, to which I was helpfully and properly referred by the respondent’s representative, in which it was stated, insofar as relevant and material:-

 

“(207.01)   The cases so far considered have all considered the claimant’s state of knowledge of the right to make a claim for unfair dismissal.  In Biggs  v  Somerset County Council [1996] IRLR 203, the issue was somewhat different.  It involved the state of knowledge of the claimant, not as to the right to make a claim for unfair dismissal per se, but as to the right to make such a claim, and in the course of doing so, to rely upon Article 141 (ex 119) of the Treaty of Rome to challenge the qualifying restrictions preventing part-time workers from claiming for unfair dismissal.  The claimant, a part-time teacher, was dismissed in 1976.  She had not worked sufficient hours per week to qualify for the right to make a claim of unfair dismissal, so she did not do so at that time.  In 1994 the House of Lords ruled that the qualifying restrictions on part-time workers were unlawful under European Community Law ... , and within three months of that decision, Mrs Biggs made a claim for compensation for unfair dismissal.  However the claim was dismissed on the ground that she was out of time, with both the EAT and the Court of Appeal ruling that it had been reasonably practicable for a claim to have been brought in 1976 ... the reasons for this conclusion were that Article 141 was then part of UK law; that it had been held to be directly applicable, therefore enabling any employee to rely on it to challenge the discriminatory effect of domestic legislation; and that it was therefore possible for Mrs Biggs to have made a claim for unfair dismissal in 1976, relying on Article 141 to displace the indirectly discriminatory restrictions that were then contained in TULRA 1974, in the same way as it was done successfully by the EOC in 1994.  The Court of Appeal acknowledged that in 1976 very few people, even lawyers, understood the impact of community law, that this did not affect its conclusion.  As Neill LJ stated:-

 

‘It would be contrary to the principle of legal certainty to allow past transactions to be re-opened and limitation periods to be circumvented because the existing law at the relevant time had not yet been explained or had not been fully understood.’                   [tribunal’s emphasis]

           

(207.02)    If the Court had kept the reasons for its conclusion purely within the bounds of the policy considerations that lay behind the case – there were many thousands of similar retrospective claims pending as a result of the House of Lords decision in the EOC case, and many sound reasons why it would be undesirable to allow them to proceed – then Biggs could simply be treated as an exceptional case that did not affect the jurisprudence that had been built up over the years on the meaning of reasonable impracticability.  But the Court sought to justify its conclusion by interpreting the phrase ‘not reasonably practicable’ in a statutory context, and so its reasons had potentially wider significance.  Neill LJ giving the main judgment held that Mrs Biggs ‘mistake as to what her rights were’ had been a mistake of law, not of fact, and so could not be relied on to justify reasonable impracticability.  Moreover, he held the phrase ‘not reasonably practicable’ was directed to ‘difficulties faced by an individual claimant’, such as illness and, points to ‘some temporary impediment or hindrance’.  Such a restrictive interpretation of the phrase ‘not reasonably practicable’ is, with respect, impossible to reconcile with existing case law.  No other case has held that a mistake of law (ie ignorance of the law) was on itself the crucial factor.  From Denman and Walls Meat Company Ltd  v  Khan to Palmer & Saunders and London International College  v  Sen ... the Court of Appeal has accepted that it is the reasonableness of such ignorance or mistake that is in the end determinative of whether it is reasonably practicable to make a complaint in time.  What the Court in Biggs has effectively purported to do is to limit reasonable practicability to physical impediments, which each one of the authorities had made clear is not the test.  It is submitted therefore that this case is very much a decision on its own facts, and ought not to be regarded as undermining the careful reasoning set out in the established authorities on this aspect of the law.

 

(208)         If an employee is reasonably ignorant of the right to claim, it will inevitably follow that he will be unaware either of the correct mode of making a claim or the time within which it should be made.  But if he knows in general about the availability of the remedy, he may still be ignorant of how and when to pursue it.  In these circumstances, as Brandon LJ noted in the Walls Meat case, it may be difficult for him to satisfy a tribunal that he behaved reasonably in not making suitable inquiries about these matters.  Shaw LJ in the same case commented that ‘mere ignorance of the time-limit will not of itself amount to reasonable impracticability, save perhaps where the employee does not discover the existence of his right until a short time before the expiry of the time-limit.  Waller LJ took a similar view in Riley  v  Tesco Stores [1980] ICR 323 at 335.”

 

3.5       I think it is relevant to note that, as illustrated in various recent cases, such as Marks & Spencer PLc  v  Williams-Ryan but also John Lewis Partnership  v  Sharman [UKEAT/079/11] and Dillon & Another  v  Todd [UKEAT/11], albeit cases with very different facts to the present case, there seems to be an increasing tendency by the Employment Appeal Tribunal, in particular, to give a more ‘generous’ interpretation to the test of reasonably practicable than might have been previously thought.

 

In a recent decision, in the case of Norbert Dentressangle Logistics Ltd  v  Hutton [UKEATS/0011/13], Langstaff P endorsed the decision in the case of Asda Stores Ltd  v  Kauser [UKEAT/0165/07] in which Lady Smith, at Paragraph 17 had commented that it was perhaps difficult to discern how:-

 

“ ... ‘reasonably feasible’ adds anything to ‘reasonably practicable’, since the word ‘practicable’ means possible and possible is a synonym for feasible.  The short point seems to be that the Court has been astute to underline the need to be aware that the relevant test is not simply a matter of looking at what was possible but asking whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done.”

 

Langstaff P concluded that, in his view, “to ask whether it was reasonable to expect that which was possible to have been done is a useful insight”.

 

3.6       Where a claimant satisfies the tribunal that it was not  reasonably practicable to present a claim in time, the tribunal must then proceed to consider whether it was presented within a reasonable time thereafter.  As seen in Marley (UK) Ltd & Another  v  Anderson [1994] IRLR 152, if a tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the statutory three month period, there are no time-limits on what can be regarded as a further reasonable period for presenting the complaint.  However, as set out in Biggs  v  Somerset County Council [1996] IRLR 203, although the tribunal has a wide discretion in deciding what is a reasonable further period, the tribunal has to take into account all the circumstances in order to achieve a fair balance.  It is not only concerned with difficulties faced by the claimant, therefore an extended further period may be unreasonable if the employer was to face difficulties of substance in answering the claim.  On the facts of this case, there was no suggestions that, despite the period of delay, that the respondent was unable to defend the claimant’s claim.  All relevant records relating to holiday pay were available and thee was no evidence of any real prejudice.  In Northumberland County Council  v  Thompson [UKEAT/209/0], it was held that when, considering the reasonableness of a delay, proper consideration of all the relevant circumstances includes a continuing need by the tribunal to investigate, throughout the period of the delay, the actual knowledge that the claimant had as to his right and ‘what knowledge he should have had if he had acted reasonably in all of the circumstances’.

 

3.7       In Cullinane  v  Balfour Beatty Engineering Services Ltd [UKEAT/0537/10], Underhill J, as he then was, emphasised that the question of whether a further period is reasonable is not the same as asking whether the claimant acted reasonably (still less is it equivalent to question whether it would be just and equitable to extend time); instead it requires ‘an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted’, having regard to the ‘strong public interest’ in claims being brought promptly, and against a background where the primary time-limit is three months.  Indeed, Underhill J stated, obiter, that if the delay between the expiry of the primary time-limit and the eventual presentation of the claim is objectively unreasonable on the above basis, the fact that it was caused by the fault of the claimant’s adviser, rather than by the claimant himself, will not make any difference to that conclusion.

 

4.1       Having heard the evidence of the claimant and the submissions of the claimant and the respondent’s representative, I made the following findings of fact, as set out, in the following sub-paragraphs, insofar as relevant and material for the determination of the said time-issue, the subject-matter of this pre-hearing review. 

 

4.2       The claimant, on 19 April 2006, fell ill with auto immune syndrome hepatitis and was unable to return thereafter to her employment with the respondent, where she was employed in an HR function, making arrangements for employees working outside the jurisdiction.  In the early years of her employment with the respondent, she had worked in the payroll department of the respondent. 

 

            Due to the serious nature of her illness, the claimant was medically retired on 20 April 2007.  The claimant received, during the period of her sick absence between April 2006 and April 2007, all sick pay to which she was entitled, prior to the termination of her employment.  On the termination of her employment, she received all holiday pay to which she was entitled for the holiday year 1 January 2007 to 20 April 2007.  During the holiday year, 1 January 2006 to 31 December 2006, the claimant did receive some holiday pay from the respondent, but at the date of the termination of her employment, she claimed there was a balance owing, in respect of holiday pay for that period, which was not paid by the respondent at the termination of her employment, which amounted to approximately £1,900.00 gross.

 

4.3       Prior to the termination of her employment, in or about October 2006, the claimant discussed with the respondent the sums due to her, if she was medically retired and, at that time, she queried with the respondent the outstanding holiday pay for 2006, to which she claimed she was entitled.  She was told by the respondent that the respondent had changed its procedures and it would not be paying to her any outstanding holiday pay for the 2006 holiday year, which would thereby be ‘lost’ on the termination of her employment. 

 

The claimant, who was very ill at this time, did not query what she was told by the respondent and accepted it.  Indeed she had no reason to doubt what she was told.  As a consequence, she was not expecting to be paid, and was not paid, the outstanding holiday pay which she claimed was owing by the respondent to her in respect of the 2006 holiday year, on the termination of her employment on 19 April 2007.  The claimant did not seek any advice at that time about any claim she might have for this outstanding holiday pay at that time or indeed at any time after April 2007. 

 

4.4       Since the termination of her employment, the claimant, unfortunately, has remained ill and, due to her considerable medication, which includes steroids and                     anti-rejection immune suppressants, she is frequently left with total fatigue, aches and pains, and, at times, it can leave her mentally very low and slow to react to different circumstances affecting her day-to-day life.  She also has mobility problems and requires regular hospital appointments and blood tests.  Although the claimant did not provide any medical evidence in support of her evidence in relation to her illness and its ongoing symptoms, I had no reason not to accept what the claimant had informed the tribunal, as set out above, in relation to such matters. 

 

4.5       By chance, in or about November 2013, the claimant was told by a friend, who is employed in another firm, that there had been decisions of the European Court of Justice, namely Stringer  v  HMRC [2009] IRLR 214, which had resulted in the ability of an employee, in certain circumstances, to obtain outstanding holiday pay, which had been accrued when that employee was off sick, on the termination of employment.  The claimant was, prior to November 2013 and the conversation with her friend, totally unaware of the Stringer litigation or the attendant publicity in the media/press surrounding the litigation in or about 2009 and occasionally thereafter, following further interpretation of the said decision by the courts/tribunals in Stringer.  For the purposes of this application, it was not necessary for me to determine the relevance of the Stringer litigation, if any, on the outstanding holiday pay claimed by the claimant from the respondent and/or her ability, if any, to make a successful claim for such outstanding holiday pay.  In this context, I must also note that the respondent disputes the liability of the respondent for the outstanding holiday pay and/or that the Stringer litigation has had any relevance to the claimant’s ability to make any such claim. 

 

4.6       The claimant, by letter dated 14 November 2013, wrote to the respondent stating, inter alia:-

 

“I had to leave my employment with the company on 20^th of April 2007, reason being early retirement on grounds of ill-health.  My last day of actual work was 14^th of April 2006 and was unable to return due to my illness. 

 

Towards the end of 2006 I was informed that HR had decided that the company would no longer pay accrued contractual pay to employees who were off work due to illness, however due to news reports I believe that the European Court of Justice has ruled that such holidays must be honoured and I therefore am writing to ask that my outstanding holiday hours for 2006 should be paid to me ... .”

 

By letter dated 20 November 2013, the respondent replied to the claimant and stated:-

 

“ ... the company paid you all monies owed to you at the time your employment ended in April 2007.  The company do not intend to pay any further sum to you.”

 

4.7       The claimant, at the end of November 2013, following receipt of the letter from the respondent, downloaded from the tribunal a claim form to enable her to make a claim to the tribunal.  The claimant completed her claim form for her claim, for the outstanding holiday pay for the holiday year 2006, on 2 December 2013.  However, she did not post it to the tribunal until 30 December 2013, with the consequence it was not presented to the tribunal until 2 January 2014.  The claimant, following the conversation with her friend and receipt of the above correspondence from the respondent, again did not seek any advice about her claim.  However, she accepted, in evidence, that there was nothing physically preventing her presenting her claim at an earlier date; but she said that she had delayed doing so, from the beginning of December and over Christmas 2013, as she was concerned about her medical condition and, in particular, the potential effect on her health of proceeding with the claim, with the consequential increased stress and worry.  As a result, she decided, after signing the form on 19 December 2013 to ‘take a step back’ and to have a ‘final think’ about these matters before she finally decided to post it on 30 December 2013.  The claimant also mentioned, in evidence, that at this time there was the normal build-up to Christmas, which she finds particularly tiring due to her medical condition, and meant she did not reach a final conclusion until after the Christmas period.

 

5.1       In light of the findings of fact made by me, firstly, it was necessary for me to consider the issue:-

 

                        “Was it reasonably practicable to present the complaint in time?”

 

I am satisfied that, if, it is necessary for me to follow the dicta in the case of Biggs  v  Somerset County Council [1996] IRLR 203, referred to previously, and, in particular, the dicta of Neill LJ, when he stated:-

 

“It would be contrary to principle of legal certainty to allow past transactions to be re-opened and limitation periods to be circumvented because the existing law at the relevant time had yet been explained or had not been fully understood.”

 

I would have had no alternative but to find that it was reasonably practicable for the claimant to present the claim in time.  There is no doubt that the Stringer litigation was a clear example where, prior to the decision of the European Court of Justice, the relevant law, following the European Directive had not been fully understood and/or explained.

 

However, for the reasons set out in Paragraph 207.02 of Harvey, I am satisfied that it is not necessary for me to follow the decision in Biggs and that I can treat it as an exceptional case, which is not affected the jurisprudence that had been built up over the years on the meaning of reasonable impracticability.  I have no doubt that if the claimant had sought advice at the relevant time, in or about April 2007, on the termination of her employment, it is probable that she would have been informed by any informed adviser that she would be unsuccessful in bringing any claim for the outstanding holiday pay against the respondent.  Indeed, it was not until the Stringer litigation, in 2009, that the possibility of making such a claim became apparent.  Whilst, I do not consider that the respondent, in October 2006, made any ‘misrepresentation’ about this matter to the claimant, in advance of the Stringer litigation, I think that it is equally difficult to criticise the claimant, when she accepted what she was told by the employer at that time and, if she had asked, any informed adviser at that time. 

 

In light of the foregoing, I therefore concluded that it was not reasonably practicable for the claimant to present the complaint in time, namely on or before 19 July 2007 (the said three month time-limit). 

 

5.2       Since it was not reasonably practicable for the claimant to present her claim in time, as I have found above, it was then necessary for me to consider whether the claimant brought the claim within a further reasonable period.

 

            Whilst, I acknowledge there was some delay from when the claimant was informed by her friend of the Stringer litigation to the date when she finally presented her claim to the tribunal, I am satisfied that, due to her medical condition and its effect on her, as found by me, I would not have been prepared to find in the particular circumstances for this claimant, that this delay in November/December 2013, in itself, was unreasonable.  Indeed, initially, in light of the foregoing, I was of the opinion that I should grant the claimant’s application and find that the tribunal had jurisdiction to hear her claim.  However, on further consideration and, in light of the detailed oral submissions made by the respondent’s representative, I have come to the conclusion that the delay in bringing the claim from 19 July 2007 (ie the relevant three month date) until 2 January 2014 was not a reasonable period.  Whilst I did not consider, for the reasons set out above, that it was necessary for me to follow the decision in Biggs I do accept, when considering whether the second issue, namely:-

 

“whether the claimant has brought the complaint within a further reasonable period”;

 

it does involve, as Underhill J stated in Cullinane, the tribunal must objectively consider the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted, having regard to the ‘strong public interest’ in claims being brought promptly and against a background where the primary time-limit is three months.  It is a fact that law does not stand still and not infrequently there can be changes in the law but also further interpretation/re-interpretation of what had previously been considered to be existing law, whether under common law but, in particular, in this particular case, European Law.  Although I accept that the claimant left her employment in 2007, she believed, at that time, that there was an outstanding holiday pay due to her; but neither at that time or, more particularly, at any time between July 2007 and November/December 2013 did she take any steps to obtain any further advice about this outstanding claim for holiday pay.  Clearly, if she had done so, in or about 2009 or shortly thereafter, she would have received advice in relation to the Stringer litigation and would thereafter have been in a position to properly consider whether she ought to bring a claim to the tribunal.  It was purely ‘by chance’ that she spoke to her friend and was informed of the Stringer litigation.  I can understand that the claimant, given her medical condition and the fact that she was no longer in employment, might not have been aware of the press/media reports in relation to the Stringer litigation.  However, objectively considering the reason for the ongoing delay, I cannot ignore the fact that, if the claimant is entitled to succeed on this application, it would have made no difference if, for example, she had not spoken to her friend until this year or even later.  Whilst, I have considerable sympathy for the claimant, I have reached the conclusion, in light of the dicta in Cullinane, that she has not brought her claim within a further reasonable period, on an objective consideration of the relevant factors, in circumstances where she had taken no steps in the intervening period to make any enquiries of the respondent and/or to take advice about the matter.  This is in a context where claims are required to be brought promptly and the primary time-limit is three months, which ended on or about 19 July 2007.  In this context, it has to be noted that, in the case of Robertson  v  Bexley Centre t/a Leisure Link [2003] IRLR 434, the Court of Appeal, albeit a case relating to the issue of extension on just and equitable grounds, said at Paragraph 25:-

 

“It is also of importance to note that the time-limits are exercised strictly in employment and industrial cases ... .”

 

6.1       In the circumstances, therefore, the tribunal does not have jurisdiction to consider and determine the claimant’s claim.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing:          12 March 2014, Belfast

 

 

Date decision recorded in register and issued to parties: