Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1815/17

 

 

 

CLAIMANT: David Trotter

 

 

RESPONDENTS: 1. McGeown International Limited

2. Gary McGeown

 

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that the claimant's claims, referred to in paragraph 2 of this decision are dismissed, as being out-of-time, except for the race discrimination claim.

 

 

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Crothers

Appearances:

The claimant was represented by Mr P Ferrity, Barrister-at-Law instructed by

GCS Solicitors.

The respondents were represented by Mr M Tierney, Barrister-at-Law instructed by McNamee McDonnell Solicitors.

 

BACKGROUND

 

1.             This case was initially listed for a Deposit Hearing and later changed to a Pre-Hearing Review to consider out-of-time issues specifically. Both representatives consented to the hearing proceeding, even though the matter of the correct respondent(s) had not been resolved.

 

2.             The claimant brought claims of unlawful race discrimination, unfair dismissal, breach of contract, health and safety detriment, and in relation to written reasons for dismissal, the right to receive itemised payslips, and the right to receive initial particulars of contract. It was common case that all of the claims except for the race discrimination claim attracted the reasonable practicability test for extension of time. The just and equitable principle applies to the race discrimination claim for extension of time purposes.

 

THE ISSUES

 

3.                     The issue before the tribunal was as follows:-

 

"Whether the claim or any part of claim is outside the statutory time-limit for lodging such a claim and, if so, whether time should be extended under the appropriate statutory test?"

 

SOURCES OF EVIDENCE

 

4.             The tribunal heard evidence from the claimant and considered relevant documentation referred to in the course of the hearing.

 

FINDINGS OF FACT

 

5.             Having considered the evidence, insofar as same related to the issue before it, the tribunal made the following findings of fact, on the balance of probabilities:-

 

(i)             The effective date of termination of the claimant's employment was 24 November 2016. It was also agreed by the representatives that the last act of unlawful racial discrimination occurred on 24 November 2016 and, contrary to paragraph 7.2 of the claimant's claim form, presented to the tribunal on 13 April 2017, that the alleged act of unlawful discrimination did not extend beyond 24 November 2016. The claim form was signed by GCS Solicitors on the claimant's behalf, dated 13 April 2017. The three month time-limit for all claims ended on 24 February 2017.

 

(ii)           The claimant claimed in paragraph 4 of his statement annexed to his claim form, ("the Statement") as follows:-

 

"I respectfully contend that it was not reasonably practicable to me to lodge a claim to this honourable tribunal until now. I suffer from depression, albeit I have not sought formal medical evidence in respect of same as I have tried to cope myself. However, my difficulties in this respect ultimately culminated in my attendance at A&E last week with chest pain".

 

The tribunal was presented with medical notes relating to the claimant's attendance at Craigavon Area Hospital Accident and Emergency Department on 4 April 2017. There is a reference to shoulder pain in the notes, but no reference to chest pain. Furthermore, no medical evidence was provided in relation to the alleged depression.

 

 

(iii)          Although paragraphs 2 and 3 of the statement refer to the alleged circumstances leading up to his dismissal and refer to issues regarding payslips, JobSeeker's Allowance, to the claimant first seeking legal advice on 7 April 2017, and his attendance at Craigavon Area Hospital on 4 April 2017, it does not refer to other matters highlighted by the claimant in his evidence pertaining to two episodes of speeding in England in the course of his employment, resulting in six penalty points and a fine of £700.00 in January 2017, and a further fine of £800.00, together with six penalty points and disqualification from driving for a period of six months on 6 March 2017. It appears that these offences occurred in October 2016. It also appears from the statement that the claimant sought legal advice separately in relation to Social Security issues. This appears to have been on 7 April 2017.

 

(iv)          In paragraph 5 of the statement the claimant stated:-

 

"Moreover, I respectfully contend that it would be just and equitable to permit me to pursue a claim to this honourable tribunal at this stage. There has been absolutely no disadvantage or prejudice to the respondent due to the elapse of time for lodging a claim, especially when it is still familiar with the facts of my case, having recently corresponded with the Social Security Agency about me and also in light of the fact that they still hold my P45".

 

(v)           The tribunal accepts the claimant's evidence that he was shocked as a result of his dismissal and that he had a difficult time over the Christmas period. Nonetheless, he was able to engage in the rather convoluted process for obtaining JobSeeker's Allowance in December 2016 and was able to obtain occasional employment in January and February 2017. Furthermore, the claimant acknowledged in evidence that he was aware of the Court system and had heard of industrial tribunals on the television. It appears that the claimant visited Richard Monteith, Solicitor on 10 April 2017 when Mr Toner of GCS Solicitors was contacted. He subsequently consulted with Mr Toner on 11 April 2017. The claim form was signed on 13 April 2017 and presented to the tribunal on the same date. The claimant's case was that he did not know about a remedy for unfair dismissal in the tribunal until this was mentioned to him by a driver colleague at the start of March/end April 2017. Mr Monteith's office had advised the claimant that he had three months in which to present a claim to the tribunal. He maintained before the tribunal that he deals with things in his own way and that he did not take tablets. He also described the circumstances leading up to his dismissal as reflected in paragraphs 2 and 3 of the statement.

 

(vi)          The statement refers to the race discrimination complaint in the following terms:-

 

"I further contend that the respondent dismissed me so that it could directly replace me with a foreign employee, as I am now aware that the respondent had earmarked a Foreign National to drive my lorry, prior to 24 November 2016 and I therefore contend that I was discriminated against on the grounds of my race/nationality".

 

He also refers to his other claims relating to health and safety, breach of contract, holiday pay, and the employer's alleged failure to provide wageslips, a written statement of employment particulars, and written reasons for his dismissal.

 

THE LAW

 

6.                             (1) Article 65 of the Race Relations (Northern Ireland) Order 1997 provides as follows:-

 

"(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 three months beginning when the act complained of was done; or ...

 

(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 it that it is just and equitable to do so".

 

(2) Harvey on Industrial Relations and Employment Law ("Harvey") states at Division P1 Practice and Procedure as follows:-

 

"(3)      'Just and equitable' extension

 

[277]

It has been noted that under some jurisdictions a tribunal is empowered to grant an extension of time 'if, in all the circumstances of the case, it considers that it is just and equitable to do so', or according to some such formula. Where these words appear, it has been held that they give the tribunal 'a wide discretion to do what it thinks is just and equitable in the circumstances ... they entitle the [employment] tribunal to take into account anything which it judges to be relevant': Hutchison v Westward Television Ltd [1977] IRLR 69, [1977] ICR 279, EAT. The discretion is broader than that given to tribunals under the 'not reasonably practicable' formula: Hawkins v Ball and Barclays Bank plc [1996] IRLR 258, EAT; British Coal Corpn v Keeble [1997] IRLR 336, EAT; Mills and Crown Prosecution Service v Marshall [1998] IRLR 494, sub nom DPP v Marshall [1998] ICR 518, EAT. Notwithstanding the breadth of the discretion, it has been held that 'the time limits are exercised strictly in employment ... cases', and that there is no presumption that a tribunal should exercise its discretion to extend time on the 'just and equitable' ground unless it can justify failure to exercise the discretion; as the onus is always on the claimant to convince the tribunal that it is just and equitable to extend time, 'the exercise of discretion is the exception rather than the rule' ( Robertson v Bexley Community Centre [2003] EWCA Civ 576, [2003] IRLR 434, at para 25, per Auld LJ); Department of Constitutional Affairs v Jones [2007] EWCA Civ 894, [2008] IRLR 128, at paras 14-15, per Pill LJ).

 

 

 

[277.01]

In Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298, [2010] IRLR 327, the Court of Appeal dismissed any suggestion that Auld LJ's comments in Robertson were to be read as encouraging tribunals to exercise their discretion in a restrictive manner, and it rejected an argument that the tribunal in Caston, by expressly adopting a so-called 'liberal' approach, had thereby vitiated a decision to extend time when there were otherwise good grounds for doing so. The use of such a term was, in the circumstances, an irrelevance. According to Sedley LJ: `there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised' (para 31). Whether a claimant succeeds in persuading a tribunal to grant an extension in any particular case 'is not a question of either policy or law; it is a question of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it' (para 32). As Langstaff J put it in Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT//0305/13 (18 February 2014, unreported), a litigant can hardly hope to satisfy that burden unless he provides an answer to two questions (para 52):

 

''The first question in deciding whether to extend time is why it is that the primary time limit has not been met; and insofar as it is distinct the second is [the] reason why after the expiry of the primary time limit the claim was not brought sooner than it was.''

...

[279]

The discretion to grant an extension of time under the 'just and equitable' formula has been held to be as wide as that given to the civil courts by s 33 of the Limitation Act 1980 to determine whether to extend time in personal injury actions ( British Coal Corpn v Keeble, DPP v Marshall, above). Under that section the court 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 affected by the delay; ( c) the extent to which the party 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 (see British Coal Corpn v Keeble [1997] IRLR 336, at para 8). However, although, in the context of the 'just and equitable' formula, these factors will frequently serve as a useful checklist, there is no legal requirement on a tribunal to go through such a list in every case, 'provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion' ( Southwark London Borough v Afolabi [2003] EWCA Civ 15, [2003] IRLR 220 at para 33, per Peter Gibson LJ). This point was reiterated by Laing J in Miller v Ministry of Justice UKEAT/0003/15 (15 March 2016, unreported), where she rejected any suggestion that if a tribunal does not expressly rehearse the factors and 'balance them off' appropriately, it will err in law. She emphasised that it is for the employment tribunal to decide (subject to Wednesbury) what factors are relevant to the exercise of its discretion and what weight to give to them, and not for the EAT to give detailed instructions on the matter (paras 29-30).

 

The reasonably practicable test

 

(3) Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides as follows:-

 

"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 a 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)        In relation to the claimant's complaints of alleged failure to provide initial particulars of employment and failure to provide payslips, the tribunal referred to Article 43(4) of the 1996 Order. Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 is the relevant provision in relation to breach of contract. Furthermore, the tribunal considered Article 71(3) and Article 125 of the 1996 Order relating to health and safety detriment and alleged failure to provide written reasons for dismissal respectively.

 

(5)   In relation to the 'reasonably practicable' test Harvey states as follows:-

 

[187]

There are two limbs to this formula. First, the employee must show that it was not reasonably practicable to present his claim in time. The burden of proving this rests firmly on the applicant ( Porter v Bandridge Ltd [1978] IRLR 271, [1978] ICR 943, CA). Second, if he succeeds in doing so, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable (see para [209] below).

[188]

It is important to bear in mind that the question of what is or is not reasonably practicable is essentially one of fact for the employment tribunal to decide, and the appellate courts will be slow to interfere with the tribunal's decision ( Palmer and Saunders v Southend-on-Sea Borough Council [1984] 1 All ER 945, [1984] IRLR 119, CA, Wall's Meat Co Ltd v Khan [1979] ICR 52, CA, Riley v Tesco Stores Ltd [1980] IRLR 103, [1980] ICR 323, CA). The tribunal must, however, address its mind to the question of reasonable practicability, where this is the test, and not simply state that it has a 'discretion to extend time', and must, moreover, make a precise finding as to the nature of the complaint in question, and as to the relevant starting date of the limitation period governing it before proceeding to consider whether any extension is appropriate (see Taylorplan Services Ltd v Jackson [1996] IRLR 184, EAT).

...

 

[192]

The leading authority on the subject is the decision of the Court of Appeal in Palmer and Saunders v Southend-on-Sea Borough Council [1984] 1 All ER 945, [1984] IRLR 119, [1984] ICR 372, CA. In that case, May LJ, who gave the judgment of the court, undertook a comprehensive review of the authorities, and concluded that the liberal construction was easier to state than to apply in practice. What he proposed was a test of ' reasonable feasibility'. He explained his reasoning as follows ( [1984] ICR at 384, 385):

 

''[W]e 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: compare Marshall v Gotham Co Ltd [1954] AC 360, HL. In the context in which the words are used in the 1978 Consolidation Act, however ineptly as we think, they mean something between these two. Perhaps to read the word "practicable" as the equivalent of "feasible" as Sir John Brightman did in [ Singh v Post Office [1973] ICR 437, NIRC] 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 subsection.''

...

[194]

The possible factors are many and various, and, as May LJ stated in Palmer and Saunders, cannot be exhaustively described, for they will depend on the circumstances of each case. The learned judge nevertheless listed a number of considerations, collated from the authorities, which might be investigated (see [1984] IRLR at 125, [1984] ICR at 385). These included the manner of, and reason for, the dismissal; whether the employer's conciliatory appeals machinery had been used; the substantial cause of the claimant's failure to comply with the time limit; whether there was any physical impediment preventing compliance, such as illness, or a postal strike; whether, and if so when, the claimant knew of his rights; whether the employer had misrepresented any relevant matter to the employee; whether the claimant had been advised by anyone, and the nature of any advice given; and whether there was any substantial fault on the part of the claimant or his adviser which led to the failure to present the complaint in time.

[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 enquiries 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.

...

(iii)      Reasonable time

[209]

Where the claimant satisfies the tribunal that it was not reasonably practicable to present his claim in time, the tribunal must then proceed to consider whether it was presented within a reasonable time thereafter. Although, as Lord Denning MR pointed out in the Wall's Meat case, this is 'very much a matter for the [employment] tribunal', the tribunal must nevertheless exercise its discretion reasonably and with due regard to the circumstances of the delay. The discretion does not give carte blanche to a tribunal to entertain a claim 'however late it was presented' ( Westward Circuits Ltd v Read [1973] 2 All ER 1013, [1973] ICR 301, NIRC).

SUBMISSIONS

7.             The tribunal considered relevant written submissions submitted by both counsel which include reference to the out-of-time issues. Copies of the submissions are appended to this decision. In addition, the tribunal considered the oral submissions of both counsel, including Mr Ferrity's reference to paragraphs 194, 277.01 and 279 in Harvey (P1). He urged the tribunal to extend time in all cases and submitted that the question of prejudice did not in fact arise. He drew the tribunal's attention to paragraph 279.01 of Harvey in this regard.

 

8.             Mr Tierney referred the tribunal to paragraph 277 of Harvey and in particular to the case of Robertson v Bexley Community Centre [2003] IRLR 434, and, in relation to the reasonable practicability test, to the case of Porter v Bandridge Ltd [1978] IRLR 271. Mr Tierney also referred the tribunal to his written submissions, to the burden of proof on the claimant, to the absence of medical evidence relating to depression or chest pain, and submitted that the claimant ought to have known about his rights as he was aware of Courts and had accepted that he knew the phrase "Industrial Tribunal" before. He also referred the tribunal to paragraph 277 of Harvey in relation to the just and equitable extension principle and submitted, on the basis of Robertson v Bexley, that the exercise of discretion by the tribunal should be the exception rather than the rule, that any extension of time had to be justified, and if the tribunal were to extend time under the just and equitable principle, that the respondent would be prejudiced in relation to costs.

 

 

 

 

 

 

CONCLUSIONS

 

9.                             (i) Having applied the relevant principles of law to the facts as found, the tribunal conclude as follows:-

 

(a)          The claimant described the manner of his dismissal and his subsequent shock. There was no medical evidence before the tribunal either or his alleged depression or chest pain, factors relied on in his claim form to contend that it was not reasonably practicable for him to present his claim until 13 April 2017. The claimant was however able to address the rather convoluted process for claiming benefits in December 2016. He also obtained some work in January and February 2017. The claimant had an awareness of Courts and had heard of industrial tribunals on the television. It appears that he did not take action towards presenting a claim until after a colleague spoke to him at the beginning of March/end April 2017. The tribunal is satisfied that the claimant ought reasonably to have made further enquiries about his right to claim in the tribunal pursuant to his dismissal which he portrayed as being both dramatic and traumatic.

(b)          In the leading case of Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, the words "reasonably practicable" were held to lie somewhere between reasonable on the one hand and reasonably physically capable of being done on the other. The Court of Appeal further held in that case that the best approach was to read "practicable" as the equivalent of "feasible", and asked, "was it reasonably feasible to present a complaint to the Employment Tribunal within the relevant three months?"

 

(c)           The tribunal, on balance, concludes that it was reasonably feasible for the claimant to present his claim within a three month period, ie, before 27 February 2017. This also relates to the further claims of breach of contract, right to received itemised payslips, right to receive particulars of contract, alleged health and safety detriment, and the alleged failure of the employer to provide written reasons for dismissal. These claims are therefore dismissed.

 

(d) In considering the race discrimination complaint, the tribunal has a broader discretion than is afforded under the "not reasonably practicable" test. The delay in presenting the race discrimination complaint relates to the period between 27 February 2017 and 13 April 2017. In this period, somewhere between the beginning of March/end April, a colleague referred the claimant to the possibility of claiming unfair dismissal. He had obtained legal advice in relation, apparently, to Social Security issues, on 7 April 2017. The claimant subsequently obtained legal advice on the issues before the tribunal on 10 and 11 April 2017 and the claim was presented on his behalf to the tribunal by his Solicitors on 13 April 2017. The cogency of any evidence is unlikely to be affected by the delay. The tribunal is satisfied that the claimant sought legal advice soon after a colleague spoke to him about the possibility of a claim for unfair dismissal. The tribunal is further satisfied that the claimant would suffer more prejudice than the respondent should an extension of time be refused. In all the circumstances of the case, the tribunal is therefore satisfied that it is just and equitable to extend time in relation to the race discrimination complaint.

 

(ii) The claimant's claims are therefore dismissed, except for the case of race discrimination.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 25 September 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: