FAIR EMPLOYMENT TRIBUNAL
CASE REF: 00324/04FET
CLAIMANT: Ian Campbell
RESPONDENTS: 1. Chief Constable
2. Peter Kane (Deputy Chief Superintendent)
3. David Mercier – Force Legal Adviser
4. Superintendent McIvor
DECISION ON A PRE-HEARING REVIEW
The decision of the Tribunal is:-
(i) that the claimant's claim is out of time; and
(ii) that it would not be just and equitable to extend the time limit.
(iii) that the claimant did not waive his legal privilege;
Constitution of Tribunal:
Chairman: (sitting alone) Ms P Sheils
Appearances:
The claimant appeared and represented himself.
The respondents were represented by Mr Peter Coll, Counsel, instructed by Mrs Mary O'Neill, Solicitor, for the Crown Solicitor's Office.
Issues for the Tribunal
- Was the application presented within the specified time limit?
- If not, is it just and equitable, in all the circumstances of the case, for the Fair Employment Tribunal to consider this complaint despite the fact that it is out of time?
- Did the claimant waive his legal privilege in respect of legal advices he referred to during the course of the hearing?
The Contentions of the Parties
The Claimant
- The claimant lodged a claim form to the Office of the Industrial Tribunals and the Fair Employment Tribunal on 21 June 2004. In it he alleged that he had been unlawfully discriminated against by the respondents on the grounds of his political opinion since October 1999 to the date of his signing of the form, 21 June 2004. The claimant gave evidence in relation to when the acts of such political discrimination had occurred. The claimant stated that he had been attempting to have the issues resolved internally and it was only in May 2004 that he came to the conclusion that his attempts to do so had failed whereupon he lodged his claim form.
- The claimant also stated that he had always been reluctant to lodge proceedings against his employer because he did not wish to be disloyal to the respondents.
- The claimant also stated that he had not lodged proceedings sooner, ie before he realised that his attempts to resolve his difficulties internally had failed, on the basis of legal advice that he had received from counsel, the summary of which was that he should exhaust internal redress without or before recourse to an industrial tribunal.
The Respondents
- The respondents' response form lodged on behalf of the respondents denied any political discrimination and indicated that the Tribunal had no jurisdiction to consider the complaint which had not been presented within the time prescribed by Article 56 of the Fair Employment and Treatment (Northern Ireland) Order 1998.
- The respondents contended that the claimant had lodged proceedings outwith the statutory time limit and that the Tribunal had no basis on which it could exercise its discretion that it would be just and equitable to extend the time limit.
- The respondents also contended that the claimant had waived his legal privilege in respect of the legal advices to which the claimant referred and on which he sought to rely.
Submissions and Evidence
- The Tribunal heard evidence and submissions from the claimant that his claim was not out of time and in the alternative that the Tribunal should consider his claim despite the fact it was out of time on the basis that it would be just and equitable in all the circumstances of the case for the Tribunal to do so.
- The Tribunal heard submissions from the respondents, through their representative, that the claim was out of time and that there was no basis for the Tribunal to exercise its discretion that it would be just and equitable in all the circumstances of the case to consider the claim despite the fact that it was out of time.
- The Tribunal heard submissions from the respondents' representative and the claimant in relation to the waiver of privilege point. The Tribunal made its ruling during the hearing.
Findings of Fact
The Tribunal considered the evidence of the claimant, his submissions and the submissions of the respondents' representative and found the following relevant admitted or proved on a balance of probabilities:-
- In October 1999 members of the H1 Mobile Support Unit (MSU) made complaints against the claimant of sectarian bigotry which, according to the claimant, alluded to his membership of the Orange and Black institutions. There was an investigation into these complaints against the claimant which was completed in 2001. The claimant claimed that he had been subjected to a flawed and prejudicial investigation in relation to these complaints. This investigation was stayed in 2001.
- In September 2000 the claimant was transferred from his post because of the complaints against him. The claimant appealed the decision to transfer him and was successful in that appeal in January 2003. However the claimant was not returned to his old Unit at Gough but returned instead to Armagh in 2003. The claimant's complaint in this regard was that his transfer appeal had been unduly delayed, that force procedures had been ignored and that there had been an attempt to undermine his appeal by refusing to grant disclosure of vital documents. The claimant did not lodge any grievance against any of these issues.
- The claimant claimed that he had been less favourably treated by the respondents in relation to internal grievances brought against him by the members of his Unit in that he alleged that all relevant force guidelines and instructions had been ignored. His complaint related to the way in which the internal grievances had been brought, the way they had been handled, including the length of time they took and the lack of transparency in relation to the handling of them. However the claimant had been advised in October 2001 that the grievances had been completed, with the matters remaining unresolved. In 2002 the claimant again voiced his concerns about the way in which these grievances had been dealt with but he did not lodge proceedings in relation to this issue before June 2004.
- In 2005 the complaints by members of the Unit against the claimant formed the basis of proceedings to a Fair Employment Tribunal in which the claimant was named as co-respondent. The claimant was represented separately by solicitors, Edwards & Company, who acted on his behalf to defend the claims brought against him. The claimant stated that he had told those solicitors that he believed that he was being discriminated against himself but the solicitors did not progress the matters because they were acting only in regard to the defence of the claims brought against the claimant. The Tribunal saw correspondence from that firm to the respondents ranging across the years from 2001 through to 2004 however the Tribunal was not shown any correspondence or document between that firm and the claimant to bear out this statement.
- The claimant applied to the Chief Constable for legal assistance to defend the complaints against him and was refused this legal assistance in 2001. The proceedings were settled as against the Chief Constable. The two complainants thereafter withdrew their claims against the claimant, one in 2004 the other in 2005. The claimant submitted his legal expenses to the respondents in February 2004 and in May 2004 the respondents advised that in light of its earlier position these expenses would remain the responsibility of the claimant. The claimant did not lodge any proceedings in relation to either the first refusal of legal assistance or the reiteration of that refusal until his claim form, signed by him in June 2004.
- In 2001 the claimant requested that the complaints and those who had brought them be fully investigated. In October 2001 the respondents refused to investigate the complaints taken against him or how they had been made. The claimant thereafter sought the assistance of Her Majesty's Inspector of Constabulary. The claimant indicated to the Tribunal that Her Majesty's Inspectorate advised the respondents that they believed that the claimant had been discriminated against. However the claimant did not have a copy of Her Majesty's Inspectorate report nor was there any further evidence put to the Tribunal on this. The claimant did not lodge proceedings in respect this matter until his claim form, signed in June 2004.
- The claimant instructed a firm of solicitors, Nelson-Singleton, in 2003, to advise him in relation to a number of specific incidents. The solicitors' invoice noted all aspects of the work carried out by them on the claimant's behalf. These solicitors prepared a brief to counsel to advise the claimant in relation to potential judicial review proceedings regarding the decision of the Complaints and Discipline Department and similar proceedings regarding his having had to sign over absolute authority to the respondents/Crown Solicitors for the conduct of the tribunal proceedings; in relation to the proceedings and procedures used by the respondents in the investigation of the complaints against the complainant and advices in relation to the internal grievances taken against him.
- The claimant's solicitors sought legal advices from a barrister on these issues. The claimant stated that these advices referred to the possibility of his bringing Tribunal proceedings on the grounds of discrimination.
- The Tribunal saw the solicitors' invoice and noted that it was comprehensive in itemising the work done, the issues to which the work related and the basis of the request for advices to the barrister. The Tribunal also noted that the invoice made no reference to any advices or directions by either the solicitors or counsel in relation to any potential discrimination claim and it did not itemise any work done or advices sought in respect of the claimant bringing any tribunal or other proceedings in relation to any discrimination being carried out by the respondents (or anyone one else) to the claimant.
- The claimant stated that the summary of the advices from counsel in relation to the discrimination claim was that he should to seek to resolve his complaints internally before lodging legal proceedings. The claimant did not indicate the basis or extent of this legal advice. However the Tribunal noted that summary of legal advice did not include that the claimant was to do this even beyond the time limits. There was no other evidence of these legal advices. The Tribunal concluded that the claimant had not established that the stated summary of legal advices on which he relied was complete or correct.
- The claimant made approximately six applications for specialised posts between the years of 2002 and 2004. The claimant was unsuccessful in each of these applications:-
(a) Special Branch – March 2002.
(b) HMSU – May 2002.
(c) Surveillance Unit – September 2002, November 2004 and August 2005.
(d) Textile Support Group – January 2002 and 2004.
(e) Public Order Training Inspector – 2004.
(f) Firearms Training Inspector – 2004.
- It was accepted by the claimant that he had been refused the Public Order Training Inspector post in spring 2004 and more than three months before the date of the claim form was either signed, in June 2004, or received by the Office of Industrial Tribunals and the Fair Employment Tribunal, in July 2004. The claimant also accepted that two of the applications, one for Inspector of Technical Training and the other for Firearms Training Inspector had both been made after his claim form had been lodged.
- It was not challenged that during 2003 and 2004 the claimant had been under pressure in his professional and domestic life. However during this period the claimant wrote several letters of complaint to the respondents in the years between 2001 and 2004. He wrote to the Policing Board and sought their help in obtaining satisfactory or any redress to his complaints against the respondents. He sought the support of Members of Parliament who wrote to the respondents on his behalf. He wrote to Her Majesty's Inspectorate of Constabulary. It was noted in internal correspondence between respondent personnel and that organisation in 2002 that the respondents believed that the claimant would issue proceedings to a tribunal. However the claimant did not instigate any formal or other grievance under the respondents' internal grievance procedures in relation to any of the alleged acts of discrimination.
- The respondents produced evidence to show that the claimant had lodged industrial tribunal proceedings under the Working Time Regulations in 2003. This fact contradicted the claimant's statement that his reluctance to be disloyal to his employer had been a factor in his not having issued timeous proceedings in relation to his allegations of discrimination. The claimant stated that he had forgotten about these proceedings because he had lodged them on advice from his Federation, that they were lodged on a technical point and one not exclusive to him and that he had lodged the proceedings as in a batch amongst a substantial number of other officers.
- However while the Tribunal accepted this latter point nevertheless the claimant was aware of the issue involved in the proceedings and had signed his own claim form. Accordingly the Tribunal did not accept the claimant's explanation that he had forgotten about these proceedings or that he had not sought to mislead the Tribunal by omitting to refer to them.
- The claimant stated that he had lodged his claim form after he had received a letter from his Member of Parliament, Mr. Donaldson, which he stated had informed his decision to lodge proceedings. The claimant stated that this was the first time he realised that his attempts at internal resolution had failed. The Tribunal could not accept that this was a genuine view held by the claimant in view of the numerous pieces of correspondence before this from the respondents to the claimant and others indicating that they did not accept his complaints and were taking no further action to investigate or resolve his complaints.
- It was accepted by the claimant that his claim form had been received by the Office of the Industrial Tribunals and the Fair Employment Tribunals in July 2004. The claimant stated that he had lodged his claim in June 2004 but had no explanation for the fact that it was not received by the Office before July 2004.
THE SUBMISSIONS OF THE PARTIES
Submissions in relation to the alleged waiver of privilege
- The respondents' representative prepared a skeleton argument and referred the Tribunal to two specific cases, R -v- Wishart [2005] All E R (D) 186(May) and
R -v- Bowden [1999]4All ER 43, the textbooks of Liglow, and Passmore, and made the following submissions;
- Legal privilege is accepted and understood as legal principle that is respected and valued but that there are exceptions to it. The respondents' representative submitted that in giving the evidence that he did the claimant had brought himself within the ambit of one such exception, waiver, by indicating not just that he had received and acted on legal advice but by stating the content of that advice. This was more than the bare assertion of reliance on advice or stating the effect of legal advice but was a statement of what the legal advice actually was.
- The respondents' representative submitted that the claimant could not resile from this position by claiming that he had made a mistake, by inadvertently referring to the content of the advice. The respondents' representative submitted that the respondents were now entitled to see the claimant's legal advices in full on the basis that their existence goes to two key aspects of the case, namely if the legal advices were actually broader than the summary the respondents' would need to know why the claimant had decided to ignore it and if the advices show that the claimant was advised to lodge proceedings timeously and he then did not do so the claimant would not be entitled to the benefit of the principles of equity to extend time.
- The claimant referred the Tribunal to a number of the cases and in particular the cases of Great Atlantic Insurance -v- Home Insurance [1981] 2All E R 485, NEA Karteria Maritime Co. V Atlantic and Great Lakes Steamship Corp. Commrs. No.2 1981 LR 138, and Webster -v- James Chapman & Co. [1999] 3 All E R 939. He refuted that he had gone beyond an assertion that advice had been given or a brief summary of that advice. He claimed that he had made these comments out of ignorance and by mistake. He submitted that the Tribunal had the discretion to make allowances and not to order disclosure in such circumstances.
The Tribunal's Conclusion on Waiver of Legal Privilege
- The Tribunal considered the cases and the legal texts to which it had been referred. The Tribunal noted that the question whether the claimant had waived his legal privilege is a question of fact and noted that cases as examples of when and how such waiver can occur. The Tribunal found as a fact that the claimant had referred only to a summary of his legal advices. He did not state the basis of that advice. The summary, that he should seek to exhaust his internal remedies first without or before going to a tribunal, did not set out either the context of this advice or the basis of it. Nor did the summary of advice suggest that the claimant should do this and ignore the time limits. The Tribunal concluded that the claimant had not waived his legal privilege in relation to his legal advices and that there would be no order to disclose these.
Submissions re Time Limit
The claimant's submissions that his case was brought within the three month time limit
- The claimant's first submission was that his claim to the Fair Employment Tribunal signed by him on 21 June 2004 and received by the Tribunal Office on 15 July 2004 was within time. The claimant based this submission on the premise that the time limit within which he should have lodged a complaint ran from the date on which he received a letter from his Member of Parliament Mr. Donaldson, dated 6 May 2004. This letter indicated that steps taken by Mr Donaldson on the claimant's behalf to have his grievances resolved internally had been unsuccessful. It was at this point, the claimant submitted, that he realised that his attempts to resolve the matters internally were exhausted and he had no further recourse but to lodge a claim to the Fair Employment Tribunal.
- The claimant submitted that he had probably received the letter two or three days after the 6 May 2004 and that the date on which he received that letter would be the operative date for the beginning of the three months time limit period within which he should lodge his claim.
- The claimant submitted that throughout the period 2001 to 2004 he went to substantial lengths to seek internal redress. The claimant submitted that the letter from Mr Donaldson MP to him is explicit evidence that he the claimant was engaged on an ongoing basis in an attempt to resolve his difficulties internally.
- The claimant's second submission was that his case was within the time limit on the basis of the decision in the case of Hendricks -v- Commissioner of Police for the Metropolis [2003] IRLR 96. The claimant submitted that that case was relevant to his on the basis that the time limit did not apply to him as the issues in his case remained ongoing, up until the date on which he signed his form, June 2004.
The Claimant's submissions in relation to the exercise of the Tribunal's discretion
that it would be just and equitable to extend the time.
- The claimant's third submission was that the Tribunal should exercise its discretion to deem his claim in time on the basis that it would be just and equitable to do so. The claimant referred the Tribunal to a number of cases in this regard and in particular Hutchison -v- Westward TV [1977] IRLR 69. The claimant submitted that in the exercise of its discretion the Tribunal could take into account anything which was relevant. The claimant also referred to the Tribunal to the case of Robinson -v- Post Office [2000] 804. The claimant submitted that this case had held that the pursuit of an internal grievance could be a reason to allow extra time for lodging a claim under a just and equitable ground. In this regard the claimant indicated that it was relevant that he had tried to exhaust all internal measures to obtain redress prior to lodging claims. The claimant submitted that the Tribunal should take account of the fact that he had lodged a claim only when it became clear to him that all attempts to resolve the matters internally had been exhausted – in May 2004.
- The claimant sought to distinguish his case from Apelogun-Gabriel's -v- London Borough of Lambeth [2002]IRLR 116, which indicated that delay in lodging a claim brought about by awaiting the outcome of an internal grievance was only one of a number of matters for a tribunal to consider in the exercise of its just and equitable discretion. The claimant also referred the Tribunal to the case of Robinson -v- Post Office [2000] IRLR 804 where another important factor taken into account was whether the claimant knew of the relevant time limits. The claimant indicated that although he was aware of the time limits he had a reluctance to take a case against the respondents and to go to tribunal, believing instead in the importance of having the matters resolved internally.
- The claimant sought to bring his case within the ambit of Gannon and Others -v- The Northern Ireland Policing Board and Ryder -v- Northern Ireland Policing Board, Reference 337/04 FET both of which stressed the importance of having ongoing grievances as a factor to be considered in the exercise of the just and equitable discretion. The claimant urged the Tribunal to apply the broad interpretation given in that case to the concept of internal grievance on the basis that in raising the matters through correspondence he was in effect taking grievances against the respondents by making them aware of his complaints. The claimant also submitted that in raising his complaints with Her Majesty's Constabulary he was doing so within the "police family", and therefore internally.
- The claimant also referred the Tribunal to the case of Magowan -v- The Chief Constable 2005 Case Ref 46/03,128/03 where the character of the claimant in question was another factor the Tribunal should consider in the balancing exercise involved in the assessment of whether it would be just and equitable to extend the time limits. In that case the Tribunal had assessed the claimant as "not someone who was in any way reluctant to bring proceedings against his employer". The claimant stressed that in his case it was with the greatest reluctance that he brought proceedings against his employer and was not by nature predisposed to do so. The claimant sought to evidence this by his reliance on the lengths to which he had gone to obtain internal redress.
- The claimant submitted that another factor that the Tribunal should take into account was that the respondents were not prejudiced by the delay in the lodging of the claim in that they were aware the applicant was considering bringing proceedings. The claimant drew a parallel with his and the Ryder case and submitted that the respondents were well aware of the potential of his bringing a claim, given the lengths to which he was going to try to resolve the matter internally, and that in being so aware the respondents could not claim or be considered to be prejudiced by the delay in his having lodged his claim.
- The claimant submitted further on this point that as in the case of Armstrong -v- The Ministry of Transport Police it should have been obvious to the respondent that there was a matter of concern that required investigation. The claimant submitted that this should have been obvious to the respondents, given the extent of attempts he made to seek internal redress that his lodging a claim was inevitable.
- The claimant further submitted that another fact that a tribunal should take into account in the exercise of its discretion was the nature of the advices that had been available to him in relation to the lodging of his claims. The claimant drew the Tribunal's attention to the fact that he had obtained professional legal advices from solicitor and counsel in January 2003 and stated that the summary of that advice was to exhaust internal redress before recourse to a Tribunal.
- The claimant submitted that another factor the Tribunal should consider taking into consideration in the exercise of its discretion with that which was articulated in Mills -v- The Crown Prosecution Service -v- Marshall [1998] where it was stated that a crucial factor in the assessment in whether it would be just and equitable to extend a time limit is whether it is possible to have a fair trial of the issues raised by the claimant
- The claimant then submitted with reference to what is known as the "check list" as set out in Harvey on Industrial Relations and Employment's Law and extrapolated from the case of British Coal Corpn -v- Keeble [1997] IRLR 336,that in the exercise of its discretion a tribunal should consider the following factors:-
- The length and reasons for delay.
- The extent cogency affected by delay.
- The extent to which the respondent co-operated with the requests for information.
- The promptness with which the claimant acted when he became aware of facts given rise to a cause of action.
- Steps taken by the claimant to obtain legal advices. The claimant submitted that the case that Southwark -v- London Borough Council -v- Afolobi [2003] had held that Tribunal was under no legal requirement to go through this check list in each case "provided no single factor has been left out by the Employment Tribunal in the exercise of its discretion".
The claimant made submissions in relation to each of these factors:-
• The length and reasons for delay.
In his case the claimant suggested that the following be considered by the Tribunal as factors that would explain the length and give reasons for the delay in his having lodged a claim. These included his pursuing internal redress, his reluctance to go to a Tribunal against his employer, the advices received by him from counsel to exhaust internal avenues prior to lodging a claim, and difficulty of getting disclosure due to the lack of co-operation from the respondents.
• The extent cogency of evidence affected by delay.
The claimant submitted that if his claim were deemed out of time then it was so by only one month and given that the incidents to which his claims relate go back to 1999 it is difficult to see how one month will have much impact on the cogency of the evidence. The claimant submitted that he had retained all records of correspondence and given the nature of the organisation he submitted that the respondent's were likely to have retained similar documentation and correspondence. In fact the claimant submitted that the respondent's had a policy of non disposal of documents within a period of less than or equal to seven years and he submitted that his claim fell within that timeframe.
- The extent to which the respondent co-operated with disclosure of information.
The claimant submitted to the Tribunal that the respondents' had failed to disclose to him other comparators in relation to his claim for the refusal of legal assistance. He submitted that there had been significant delay if not procrastination by the respondents in supplying minutes of the transfer meeting in August 2000. He submitted that the respondents had delayed in providing copies of grievance files by the two parties complaining against him. He submitted that the respondents had failed to provide correspondence between the RUC and Her Majesty's Inspector of Constabularies on issues regarding him. He also submitted that the respondents had failed to provide all documentation from discipline files and in particular the allegations made against him by the two parties who had made complaints against him.
- The promptness with which the claimant acted when he became aware of facts giving rise to a cause of action.
The claimant submitted that the reply he received from Mr Donaldson was at the time that which he realised that internal resolution was not going to succeed at this stage it was after he had received this letter that the claimant said he acted promptly if reluctantly to submit an application form to the Fair Employment Tribunal.
• Legal advice
The claimant stated that he had sought legal advices in 2003 which had included the advice that he should exhaust internal procedures before taking a claim. He also indicated that the reason it had taken him until 2003 to do so was a matter of costs. He had had to defend two Tribunal cases against him in the knowledge that if the decisions had gone against him he would have been liable for the costs.
Fair Trial
- The claimant stated that he had provided adequate grounds to allow the Tribunal to extend the time limit on the basis that it would be just and equitable to do so. He stated that he had demonstrated that the respondents would not be prejudiced by the delay in his bringing his claim and on the basis of the lengths to which he had gone to secure internal redress the interests of justice would be served if he were given the opportunity to proceed to hearing.
The respondents' submissions that the claim was lodged outside the three month time limit.
- The respondents' representative submitted that the claimant's claim was out of time in that it had been lodged over three months after the most recent instance of alleged discrimination which, the respondents' representative submitted, the claimant accepted that the last act of alleged discrimination occurred in January 2003.
- The respondents' representative submitted the first of the claimant's complaints, that he had been subjected to a flawed and prejudicial investigation, had concluded in August 2001.
- The respondents' representative also submitted that the claimant had been informed of the outcome of his transfer appeal in January 2003.
- The respondents' representative also submitted that the respondents' alleged failure to investigate the substance of and procedures around the grievances against him by others that had been made against him occurred in October 2001 when the claimant was advised that the grievances were unresolved and concluded and no further action would be taken.
- The respondents' representative asked the Tribunal to note that the respondent submitted that the claimant had agreed in evidence at his hearing that he was advised by the force legal officer that this assistance would not be forthcoming in November 2001 and that therefore the time limit for bringing this complaint had expired .
- The respondent submitted that in respect of the applications the claimant made for specialised posts the last relevant such application was September 2002 which was the time the claimant was informed that he was unsuccessful for the post in question.
- In the light of the above the respondent submitted that the claimant's claim form, dated 21 June 2004 and received by the Office of Industrial Tribunals on 15 July 2004 was clearly lodged more than three months after the date of any of the acts contained on that form.
- The respondents' representative submitted that the fact that the earliest claim brought by the claimant related to a period of almost five years up to the date of the claim being lodged. The respondent's representative submitted that this should be viewed in the context of a time limit set by Parliament for employment law matters which was a three month time limit period from the date on which the act occurred. The respondents' representative submitted that as this three month time limit period was shorter than time limits set in other areas of law, for example three years in personal injury claims or six years in negligence or breach of contract cases, there was a greater disparity of time between that three month time limit and the length of time before the last act of alleged discrimination had occurred.
- The respondents' representative also submitted that case law made it clear that time limits were to be obeyed and was consistent in setting out the reasons why they should be so observed.
- The respondents' representative submitted that the Hendricks case did not apply to the claimant's case on the basis that there was no evidence to show that other officers in the same circumstances which would indicate that there was an ongoing situation or state of affairs that could be construed as "an continuing act".
- The respondent's representative submitted that the claim was out of time and that the Tribunal should not exercise its discretion that it would be just and equitable to extend the time limit in this case.
The respondents' submissions that it would not be just and equitable to extend the time limit.
- The respondents' representative indicated that the claimant had been very open and transparent and had admitted that he had felt that he had been discriminated against since 1999. The respondents' representative indicated that in law a person in this position must to do something about it and in this case to lodge proceedings within the statutory time limit period. The respondents' representative pointed to a number of factors that indicated the claimant could and should have brought Tribunal proceedings either within the three month time or certainly some long time before June 2004.
- During that period of time between 1999 and 2004 the claimant was represented by two separate firms of solicitors. The respondents' representative indicated that the fact that the claimant's involvement with these solicitors was directly on the issues which subsequently became the subject of his claims to the tribunal defeat the claimant's argument that he could not have brought his claims sooner than he did.
- The respondents' representative acknowledged that the claimant's involvement in a series of professional matters, including the internal disciplinary proceedings against him, the transfer issue, its failure and appeal, defending two industrial tribunal claims against him, and four changes in his professional working capacity and the internal selection processes around those, did indicate that the claimant was undoubtedly very busy throughout the relevant period of time. The respondents' representative also acknowledged the claimant's domestic concerns were genuine and preoccupying.
- However the respondents' representative submitted that none of these could act as a defence to protect the claimant for having failed to lodge any claims for less favourable treatment either within the appropriate time limit or before June 2004 given that the claimant was immersed in the very issues and concerns that are the subject of his subsequent allegations of less favourable treatment and ought to have acted timeously as these matters were at the forefront of his mind.
- The respondents' representative also argued that these pressures did not prevent the claimant from entering into protracted and complex correspondence with a range of professional bodies and Members of Parliament in which the claimant was successfully able to articulate his complaints comprehensively. The respondents' representative submitted that the claimant could not rely on his being too preoccupied to lodge timeous claims with the tribunal during this period of time given the amount of time and effort the claimant gave to these attempts to seek internal resolution of the issues.
- The respondents' representative also argued that the claimant's active engagement with politicians in this process indicated that the claimant was a mature man, clearly articulate and accomplished and not someone unable to stand up for his rights. The respondents' representative indicated the claimant was not a person who acting under any disadvantage or disability and who was not incapable of addressing or facing issues and that his engagement with politicians to seek redress indicated a high level of sophistication in relation to dealing with the issues. He also indicated that the claimant was someone who was used to dealing with the law and with legal matters in the general sense. The respondents' representative argued that the claimant was thus fully aware of the requisite time limits, through this own experiences. These included that fact that the claimant had been named as co-respondent in an industrial tribunal and that he had lodged proceedings to a tribunal on another legal point.
- The respondents' representative refuted the claimant's suggestion that the letter from Mr. Donaldson activated the time limit in this case. The respondents' representative submitted that it was correspondence to the respondents' from the claimant's solicitors, Edwards & Company, dated 12 March 2004 seeking"redress and explanations" was the claimant's attempt to re-start time running. It is at time point, the respondents' representative argued, that the claimant had decided to take proceedings and seeks to activate a time limit within which to do so. However the respondents' representative submitted that as the alleged acts of discrimination were already long out of time at this stage the claimant did not have the luxury of a further three month time period before lodging his claim. The respondents' representative submitted that both letters supports the respondents' position that it would not be just and equitable for the Tribunal to extend time in this case given that the claimant did not even then lodged his claim timeously but only did so some four further months, or at best, two months after these letters.
- The respondents' representative then addressed the "checklist" points thus;
• The Length of and Reasons for the Delay
The respondents' representative submitted that the Tribunal's discretion acts as a "slip rule" to the general and statutory requirement that claims be lodged within the specified three month time limit. As such it is designed to give full justice and equity to late claimants to allow time limits to be extended. He submitted that in the vast majority of cases the delay by claimants in lodging late claims is relatively short. The respondents' representative went on to submit that where the delay in time was the greater or the further back to time extension has to go the less the claimant can avail of the just and equitable discretion.
The respondents' representative submitted that the attempts by the claimant to resolve his complaint internally should not, in this case, amount to a defence or reason for his not having lodged his claim within time. The respondents' representative argued that these efforts demonstrate the claimant as a man who was aware of his rights and how he could protect these, that he was capable of fully understanding his own position, his time limits and his obligations to them.
However the respondents' representative also submitted that the claimant should not be entitled to the benefit of justice and equity on the basis of the legal and moral principle that anyone coming to equity should do so with "clean hands". The respondents' representative submitted that the claimant had lost his entitlement to equity because he had misled the Tribunal about the reason for his delay in lodging proceedings. The claimant had stated that his delay was due to his wishing to have his complaints dealt with internally on the basis that he did not want to take proceedings, that he was a loyal employee who did not want to challenge his employer/the respondents. The respondents' representative submitted that not only did the fact of the earlier proceedings taken by the claimant against the respondents diminish this argument but the manner in which these earlier proceedings were brought to the Tribunal's late attention, and by the respondents rob the argument of the necessary clean hands or integrity to give the claimant of the benefit of equity.
• Cogency of Evidence
The respondents' representative did not accept that the fact that the respondents would not yet have destroyed documents salient to their defending this was sufficient to refute the notion that the delay in this case would have an impact on the cogency of the evidence on which the respondents would seek to rely. He argued that the documents would only go so far and that oral evidence would be key in this case.
The respondents' representative did not accept that the claimant's case would be at the same disadvantage as the respondents in that he and his witnesses would be similarly impacted by the delay. The respondents' representative argued that the delay would have a substantially greater adverse impact on the respondents' case than on the claimant's. The claimant was the focus of his own claim and had been immersed in the detail of his complaints throughout the five year period 1999 to 2004 and since which afforded him the requisite recent and cogent familiarity with the facts in dispute. However the situation would be different for the respondents, five of whose potential witnesses had left the respondents' employ even before the claimant lodged his claim and who even if contactable would not have the benefit of any contemporaneous note to assist in recalling events.
• Legal advice
The respondents' representative submitted that the claimant had had significant access to legal advices throughout the relevant period. The respondents' representative argued that it would not be just and equitable to extend time in a case where the claimant had access to professional legal advice as early as 2001, actually sought professional legal advices in 2003 and then waited a further eighteen months thereafter before lodging proceedings.
The respondents' representative also argued that this was not such a case where the claimant could argue that he had relied on any wrong advice. The claimant refused to share the legal advices he had been given and accordingly there was no evidence before the Tribunal that the claimant had received any wrong advice. He also argued that it was significant that the claimant had failed to act on the advice he was given at the stage where he stated that he had been advised to exhaust internal remedies before lodging proceedings, in that he did not institute the internal grievance procedure.
• Promptness
The respondents' representative argued that as the claimant had been aware of the facts and issues which formed the basis of his claim for a considerable period of time before lodging proceedings negated any possible suggestion that the claimant had acted with promptitude. The claimant lodged proceedings nearly three months from the date of the most recent correspondence from his solicitors 12 March 2004 and almost two months from the date of the letter he received from his MP, which became for him the operative date. Given the length of time that had passed since the date of the last act of alleged discrimination the respondents' representative argued that the onus was on the claimant to act with greater promptness that this suggests.
• Co-operation of Respondents with requests for information.
The respondents' representative refuted the claimant's suggestion that the exchanges between the claimant and the respondents in discovery applications and requests for further and better particulars were any thing other than the normal attempt by respondents to ascertain the thrust of the claimant's case and fell far short of the circumstances envisaged by the authorities cited in Harvey on this point which required the respondents failure to co-operate to succeed in hoodwinking or deceiving the claimant into believing that he did not have a case. The respondents' representative submitted that this point is supported by the fact that the claimant provided no evidence of what evidence he was missing before he lodged proceedings in July 2004, so that the claimant was not in fact inhibited from doing so. The respondents' representative further argued that the claimant had sought and received sufficient co-operation and information from the respondents to deal with his complaints on an "internal" basis and that the claimant had stated that his decision to lodge proceedings had not been motivated by any failure by the respondent to co-operate but by the fact that his attempts to obtain redress and resolution had failed.
Fair Trial
- The respondents' representative also submitted that while the respondents could not show that a fair trial in this case would be impossible this factor, while important, was not exclusive and should be balanced with the respondents' entitlement to legal certainty as envisaged by the existence of legal time limit.
THE LAW AND THE TRIBUNAL'S CONCLUSIONS
The Statutory Time Limit
- The relevant legislation regarding the claimant's claims of political discrimination under the Fair Employment and Treatment (Northern Ireland) Order 1988 is Article 47 of that Order which provides that:-
"A Tribunal shall not consider a complaint under (the Order) 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 reasonable 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 the act was done …".
- Paragraph 5 of that Article states:-
"That 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 that it is just and equitable to do so."
- Paragraph 6 of the Article goes on to say
- (a) where the inclusion of any term of in a contract renders the making of the contract an unlawful act that act shall be treated as extending throughout the duration of the contract, and
- (b) any act extending over a period shall be treated as done at the end of that period, and
- (c) a deliberate omission shall be treated as done when the person in question decided upon it,
- and in the absence of evidence establishing the contrary the person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.
- As the Tribunal found as a fact that the claimant did not lodge his claim before it was registered at the Office on the 15 July 2004 and that the claimant had conceded that all acts of alleged discrimination occurred several months before the beginning of the three month period before the claimant lodged, i.e. before 14 April 2004 the Tribunal concluded that the claimant had not lodged his claim within the statutory three month time limit.
- Nor did the Tribunal accept the claimant's submission that all acts prior to and including his continued attempts to resolve his difficulties internally amounted to a continuing act as under the Hendricks case.
- That case articulated the question the tribunal must pose to itself to establish if there is a continuing act that may be relied on as to whether it was "an act extending over a period" as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed." While indicating that a tribunal did not have to establish that the continuing act was a policy or practice, in Hendricks the continuing act was deemed to be treatment meted out to the claimant manifested in a number of specific acts in a context where other females from ethnic minority groups were similarly treated. The Tribunal accepted the respondents' contention that the refusal to give the claimant financial assistance to defend the tribunal cases may still have a continuing impact, in that the claimant had to pay those fees himself, but this could not be construed as a continuing act under the Hendricks case.
- The Tribunal finds that there was no continuing act to found the claimant's contention that the alleged discrimination was ongoing up to the date of lodging proceedings and accordingly the Tribunal concludes that the claimant had not lodged his claim within the statutory three month time limit.
Just and Equitable Discretion
- In light of that conclusion I moved to consider if, in all the circumstance of the case, the time limit could be extended on the basis that it would be just and equitable to do so.
- The Tribunal considered the case law to which it had been referred and other relevant case law. This included case law on the issue of the exercise of the jurisdictional discretion under the just and equitable principle to extend time limits for lodging a discrimination claim, the Selkent Bus Co. -v- Moore 1996 IRLR 661 and ensured that the Tribunal's exercise of its discretion would be on the basis of the guiding principles therein.
- The Tribunal considered the cases of Hutchison-v Westward Television Ltd 1977 IRLR 69, Mills and Crown Prosecution Service -v- Marshall and British Coal Corporation -v- Keeble [1977] IRLR 33; which indicate that the tribunal's discretion under the just and equitable principles is very wide. The Tribunal noted that in this latter case the discretion is to be exercised by a tribunal mindful of the "checklist" set out in that case and based on the terms of the Limitation Act, namely the length and reasons for delay, the extent cogency of the evidence is likely to be affected by delay, the extent to which the respondent co-operated with the requests for information, the promptness with which the claimant acted when he became aware of facts given rise to a cause of action and the steps taken by the claimant to obtain legal advices. The Tribunal noted the case of Southwark London Borough -v- Afolabi 2003IRLR 220 and was aware that to decide the case without express reference to the "checklist" would not be fatal as long as the Tribunal considered all significant factors. The Tribunal considered the submissions of the parties in respect of each of these factors and deals with these below.
- The Tribunal considered the cases of Robinson -v- Post Office [2000] IRLR 804 and the later case of Apelogun-Gabriels -v- London Borough of Lambeth [2002] IRLR 116. In the latter case the Court of Appeal expressly rejected the contention cited in Aniagwu -v- London Borough of Hackney1999 IRLR 685 that tribunals should automatically grant an extension of time on the basis that it would be just and equitable to do so in circumstances where claimants waited until an appeal or grievance procedure was completed before lodging a claim with a tribunal. The Tribunal noted that that court in that case indicated that such circumstances were, if they existed, only one of a number of factors amongst all the relevant circumstances the Tribunal had to consider. However as the Tribunal found as a fact that the claimant had not instituted the respondents' grievance procedure at any stage during the whole relevant period of time and that his complaints to various parties external to the respondent organisation could not be construed as his having done so the Tribunal concluded that this was not a factor that could allow the Tribunal to exercise its discretion.
- The Tribunal concluded that the claimant had not established that the Tribunal should exercise its discretion to extend the time limit for the following reasons;
• Length of and reasons for the delay
- The Tribunal was referred to no authority to support the respondents' representative's proposition that the longer the delay the more difficult it is for the claimant to enjoy the benefit of equity. In the Tribunal's view this proposition does not take proper account of the principles of justice and equity themselves, in that they are not finite or time bound in the way that this proposition appears to suggest. It is not that their qualities are diminished or restricted and that there comes a point when a claimant cannot argue them. This suggestion belies the balancing act as between the parties which is involved in the exercise of the just and equitable discretion.
- The Tribunal, at this stage, must not simply consider the length of the delay but the reasons for it. As in Afolabi the time between the acts alleged can be substantial but the reasons for the delay can balance this out in that respondents, in justice and equity, should not benefit from a windfall. However the Tribunal did not accept the claimant's reasons for his delay in lodging proceedings. In reaching this conclusion the Tribunal took into account the fact that the lengths to which the claimant claims to have gone to resolve his complaints internally did not at any stage involve the claimant invoking the internal grievance procedure.
- The Tribunal also took into account that the claimant's stated reason that he wanted to have matters resolved internally because he, as a loyal employee, did not want to bring proceedings against his employer/the respondents, was manifestly unsustainable in light of two significant facts. One was the fact of the proceedings the claimant lodged against his employer/the respondents in 2003. The Tribunal did not accept that the claimant had forgotten about these proceedings because they were only on a technical point. Nor was the Tribunal impressed by the manner in which this fact was brought to the Tribunal's attention. The other significant fact that the Tribunal took into consideration was that the claimant had sought legal advices from a firm of solicitors and counsel with specific reference to his instigating legal proceedings. Even though these potential legal proceedings were not tribunal proceedings it demonstrated to the Tribunal a readiness or preparedness to proceed to law that contradicted the claimant's stated reluctance to do so.
• Cogency of Evidence
- The Tribunal concluded that the time delay in this case would put the respondents at a greater disadvantage to defend this case than to the claimant to prosecute it. Although the time delay between the first of the alleged acts of discrimination is substantially less that that in the Afolobi case and the time delay between the last act of alleged discrimination in the order of eighteen months before proceedings were lodged nevertheless the Tribunal concluded that there was enough delay to have an adverse impact on the cogency of the evidence. The respondents would have to round up officers who had left some years before the claimant had lodged proceedings and ask them to bring their minds back to events they would have no professional reasons to remember. Further as the internal grievance procedure had not been invoked by the claimant no formal statements had been taken that could have been used to support recall.
• Legal Advice
- The Tribunal considered the cases of Hawkins -v- Ball and Barclay's Bank plc 1996 [IRLR] 258 and Chohan -v- Derby Law Centre 2004 [IRLR] 685 and noted that the principles of justice and equity were brought into play where the claimants in those cases had relied on erroneous legal advice, to their disadvantage. In this case where the claimant did receive legal advices it was from two reputable solicitors firms and the Tribunal had no reason to doubt that the claimant had been given correct advice. Although the Tribunal did not see the actual legal advices to which the claimant alluded, the summary of those advices the claimant referred to seemed correct, if somewhat incomplete. That summary was that the claimant should"exhaust internal redress without or before recourse to an industrial tribunal". However as stated, this was only a summary of the advices. The Tribunal drew the inference that the advices themselves were or could have been more extensive and therefore the Tribunal was not in a position to conclude from this that the claimant's legal advices were wrong.
• Co-operation of Respondents with requests for information
- The Tribunal did not accept that the respondents' refusal to give information was such as to cause the claimant not to lodge proceedings timeously or at all. The requests for information were not made in a legal context at the relevant time either by the issue of a Fair Employment questionnaire before the claimant lodged proceedings or in discovery. And again the Tribunal reached this conclusion in light of the facts that the claimant was a capable and articulate man who had access to professional legal advices and had experience of the running of tribunal cases and how information could have been sought within a legal context. There was no evidence of any attempt by the respondent to hide such facts from the claimant that might have alerted him to the possibility of his having a claim. The claimant was already alert to that possibility.
• Promptness
- The Tribunal could not accept the claimant's view that he had lodged his proceedings promptly. The Tribunal did not accept the claimant's statement that it was only on receipt of the letter from his MP in May 2004 that he became aware of facts giving rise to a cause of action and having then lodged proceedings in June 2004 he had acted promptly. Even if this had been the case the claimant could offer no explanation why his claim form, signed in June 2004, had not been registered by the Office before July 2004. The Tribunal concluded that as the claimant had an awareness of tribunal cases, discrimination cases and time limits, and had access to professional legal advices, the claimant would have been aware of need to act timeously in relation to each of the allegations as and when they occurred.
- In light of the above the Tribunal concludes that it would not be just and equitable in all the circumstances of this case to extend the time limit.
Chairman:
Date and place of hearing: 25 October 2006, 15 & 21 November 2006
Date decision recorded in register and issued to parties:
