THE INDUSTRIAL TRIBUNALS
CASE REF: 348/05
CLAIMANT: Tom Lavelle
RESPONDENT: BT
DECISION ON PRELIMINARY ISSUES
The decision of the tribunal on the preliminary issues is:-
(a) The claim for disability discrimination was not presented within the specified time limit.
(b) It is not just and equitable, in all the circumstances of the case, for the tribunal to consider this complaint despite the fact that it is out of time.
(c) The claim for unfair dismissal was not presented within the specified limit.
(d) It was reasonably practicable to present this claim within time.
(e) The claim for breach of contract was not presented within the specified time limit.
(f) It was reasonably practicable to present this claim within time.
The claimant's complaints are dismissed by the tribunal, without further order.
Constitution of Tribunal:
Chairman: Mr James V Leonard
Appearances:
The claimant did not appear and was not represented.
The respondent was represented by Mr F O'Reilly, Barrister-at-Law, instructed by Napier & Son, Solicitors.
REASONS
- The tribunal conducted a pre-hearing review in accordance with Rule 18 contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. The tribunal did not hear oral evidence but examined such documents as were placed before it and considered a written submission on behalf of the claimant and an oral submission by the respondent's counsel, Mr O'Reilly.
- In this case, the tribunal noted that the claimant had written to the Office of Tribunals by letter dated 18 November 2005, indicating that he could not see himself, for medical reasons, being in attendance and present for the preliminary hearing, and was therefore sending his written submissions, which submissions were received by the tribunal accompanying that letter. The claimant further wrote to the Office of Tribunals by letter dated 24 November 2005 stating the following:-
"I do appreciate the Chairman of the Tribunals considering an application to adjourn the pre-hearing review listed for 8 December 2004 (sic) on health reasons. The health reasons are of a psychological nature and as I do not know if and when I would be able to attend. I think, under these circumstances, it may be better if the hearing was to continue in my absence. Again many thanks".
From that, the tribunal drew the conclusion that the claimant was content to rely on his written submission and did not intend to attend the tribunal hearing in order to elaborate upon this submission nor to give any oral evidence or submissions.
- In this case, the claimant submitted an originating application which was dated 11 February 2005 and was received by the Office of Tribunals on 14 February 2005. In that, the claimant stated his dates of employment to be from 4 December 1972 to 26 November 2003 and in paragraph 11 thereof his claim was stated to be that of 'unfair dismissal'.
- The claimant then wrote a letter to the Office of Tribunals dated 5 March 2005 stating:-
"I am in receipt of your correspondence of 2 March 2005 and am writing to inform you that I believe my complaint would, at the least, relate to unfair/wrongful dismissal, disability discrimination and victimisation".
- A Chairman of tribunals then directed that the case would be amended to include claims of disability discrimination and breach of contract.
- By notice of appearance dated 23 March 2005, the respondent denied that the claimant had been unfairly dismissed or that there had been breach of contract. The respondent further denied that it had treated the claimant less favourably either for a reason in relation to his alleged disability, or at all. It was contended that the claimant was not a disabled person within the meaning of the Disability Discrimination Act 1995. A preliminary hearing was requested, as it was contended that the originating application had been lodged out of time taking account of statutory time limitations bearing upon the claimant's complaints.
- The matter was listed for hearing on the following preliminary issues:-
(a) Was the claim for disability discrimination presented within the specified time limit?
(b) If not, is it just and equitable, in all the circumstances of the case, for an industrial tribunal to consider this complaint despite the fact that it is out of time?
(c) Was the claim for unfair dismissal presented within the specified limit?
(d) If not, was it reasonably practicable to present the claims within time or if not reasonably practicable was the claim presented within such further period as the tribunal considers reasonable?
(e) Was the claim for breach of contract presented within the specified time limit?
(f) If not, was it reasonably practicable to present the claim within time or if not reasonably practicable, was the claim presented within such further period as the tribunal considers reasonable?"
THE ISSUES
- In respect of the claimant's contentions, and in the light of the statutory provisions applicable to the claimant's complaints, such evidence and material as was before the tribunal, and the listed preliminary issues, the tribunal had to determine these preliminary issues and any order as a consequence of any determination thereof to be made on foot of Rule 18 of the Industrial Tribunals Rules of Procedure.
THE TRIBUNAL'S FINDINGS
- On foot of the evidence before it, the tribunal made the following material findings of fact:-
(a) The claimant was employed by the respondent, commencing in that employment in December 1972, and the employment came to an end with the dismissal by the respondent of the claimant on 26 November 2003. The dismissal of the claimant followed periods of extended absence on grounds of illness, the final period of which absence commenced in March 2002 and continued until the date of termination of employment by the respondent, 26 November 2003. Various medical reports were obtained by the respondent concerning the claimant over a considerable period of time, ranging from early 2000 up until a short time before the date of termination of employment.
(b) In the months prior to termination, consideration was given by the respondent as to whether or not the respondent's medical retirement criteria were applicable in the event of a final decision being taken by the respondent to terminate the employment. Acting on the advice of a Senior Occupational Health physician, a Doctor Bestall, a home visit was arranged with the claimant on 29 August 2003. Following that, the respondent wrote to the claimant by letter dated 2 September 2003 indicating to the claimant that the respondent had reached the conclusion that it would not be reasonable to keep the job open any longer. The letter stated that retirement on non-medical grounds had been authorised in accordance with company procedures. Reasons were given for that decision having been taken. The claimant was advised of two appeal options; he chose the latter of the two, an appeal based on a request for medical retirement pension benefits to be granted. That was communicated to the respondent by the claimant by means of a letter dated 6 September 2003 directed to Mr Moore, a member of management of the respondent.
(c) On 26 November 2003 the dismissal of the claimant by the respondent took effect. By letter of 31 March 2004 the respondent's management received information that the Senior Occupational Health physician, Doctor Bestall, had referred the case to Doctor Litchfield, the respondent's Chief Medical Officer, to consider the question of the appeal for medical retirement and Doctor Litchfield had concluded that the claimant's appeal ought to be denied. A detailed report was attached to the letter of 31 March 2004 for the benefit of the respondent.
(d) By letter dated 5 April 2004 Mr Ray McKeown, the claimant's senior line manager wrote to the claimant stating that Occupational Health Service had considered all the medical evidence in connection with his appeal for medical retirement and that Occupational Health Service had advised Mr McKeown that the appeal had been denied. It was confirmed to the claimant that his last day of employment therefore remained 26 November 2003, as had been previously advised to him. In the letter it was drawn to the claimant's attention by Mr McKeown that in exceptional circumstances a party might request an independent review by a senior manager and that that would be considered under the final stage of the respondent's grievance procedure.
(e) The claimant decided to follow up that information with a request for an independent review. By letter dated 9 June 2004, Ms Claire Jones of the respondent's Retail Employee Relations Unit wrote to the claimant informing him that his case did not meet the stated criteria and therefore that the case would not be passed to the final stage of the respondent's formal grievance procedure, High Level Review. It was made clear by letter dated 9 June 2004 that that was the end of the respondent's formal grievance procedure.
(f) In 2002 the claimant was being advised by a solicitor with expertise in the field of employment law concerning a complaint then lodged with the Fair Employment Tribunal. The claimant also appears to have sought advice at some stage in or around 2002 from the Equality Commission for Northern Ireland, although the tribunal is not certain of the precise timing of any advice sought and received, the claimant does record in the annexure to his originating application that on 22 December 2003 the Equality Commission informed him that there was a three month time limit for lodging a complaint of disability discrimination with the tribunal. In 2002 the claimant made an application under the Data Protection Act 1998 for documentation from the respondent which he felt might assist in his complaints.
(g) In May 2004, if it could possibly be surmised that the claimant was not already fully aware of any time limitations applicable to any of the instant complaints, as the claimant confirmed in his written submission to the tribunal, the claimant made enquiries concerning wrongful dismissal and was informed that there was a three month time limit which had begun to run from his last day of service. There is no doubt that by then, if not before, the claimant was fully aware that he was out of time as far as any complaints, then envisaged, were concerned.
(h) There was a body of medical evidence available indicating that the claimant was indeed suffering from a particular series of medical issues. However, there was no specific information available to the tribunal as to whether or not there existed any significant impediment or difficulty which would be material to the issue of whether or not, whether from a physical or a psychological perspective, the claimant was incapable or constrained in any way regarding the capacity to lodge a complaint with the tribunal in a timely fashion and in order to meet the relevant statutory time limitations.
(i) The tribunal did not need to determine any further findings of fact for the purposes of its determination in this case.
THE APPLICABLE LAW
- The tribunal considered the submissions of the respective parties and the applicable law. In this case the matter was listed for a determination of preliminary issues in respect of the claimant's complaints of unfair dismissal, breach of contract and disability discrimination.
- In respect of unfair dismissal an employee has a right not to be unfairly dismissed by his employer under Article 126 of the Employment Rights (Northern Ireland) Order 1996. Under Article 145 of the said 1996 Order, a complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer. However, Article 145(2) of the said 1996 Order provides that an industrial tribunal shall not consider a complaint under that 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 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.
- In respect of breach of contract, the tribunal's jurisdiction for breach of contract derives from the Industrial Tribunals Extension of Jurisdiction (Northern Ireland) Order 1994 ('the said 1994 Order'). Article 3 of the said 1994 Order allows proceedings to be brought before an industrial tribunal by an employee for damages or any other sum (other than in relation to personal injuries) if, inter alia, the claim arises or is outstanding on the termination of the employee's employment. However, Article 7 of the said 1994 Order provides that an industrial tribunal shall not consider a complaint under that Article unless it is presented to the tribunal:-
(a) within three months beginning with the effective date of termination; or
(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within that time, within such further period as the tribunal considers reasonable.
- In respect of disability discrimination, the Disability Discrimination Act 1995, Schedule 3(3) provides as follows:-
"3.(1) An Industrial Tribunal shall not consider a complaint under Section 8 unless it is presented before the end of the period of three months beginning when the act complained of was done.
(2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
- In regard to the complaints of unfair dismissal and breach of contract, in the recent case of Marks & Spencer PLC v Williams-Ryan [2005] EWCA Civ 470, the Court of Appeal in England considered that an employment tribunal had been entitled to find that it had not been reasonably practicable for a claimant to present her unfair dismissal claim within the three month time limit as she had received misleading advice from both a citizens' advice bureau and from her employer, leaving her with a mistaken belief that she had to exhaust the employer's appeal procedure before making a tribunal claim.
- The tribunal further considered the well-established principles derived from various authorities concerning the issue of whether it was or was not reasonably practicable to present a claim in time, such being those contained in the cases heard by the English Court of Appeal in Walls Meat Co Limited v Khan [1978] IRLR 499, Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 and London International College Limited v Sen [1993] IRLR 333 and the tribunal further considered the relevant sections of Harvey on the matter. The issue arising from these authorities upon which a tribunal must focus is the matter of whether or not there is either ignorance or a mistaken belief as to the issue of time limits on the part of the claimant. If there is, the tribunal is entitled to consider whether any such arises from
a reasonable cause, whether that cause might be as a result of a default on the part of professional advisers or otherwise.
- In respect of the unlawful discrimination complaint, the tribunal considered the case of Robinson v Post Office [2000] IRLR 806 EAT which was approved by the Court of Appeal in England in the case of Apelogun-Gabriels v London Borough of Lambeth [2001] IRLR 116, which latter judgement confirmed that the correct law as to whether it would be just and equitable to extend time for presenting a discrimination complaint which was out of time was that as stated in Robinson. That former case provided that the correct approach to be adopted by a tribunal when an employee defers proceedings before the tribunal whilst awaiting the outcome of domestic proceedings, is to view that fact as only one factor of possibly a number to be taken into account and properly to be weighed in the balance when the tribunal is determining whether it would be just and equitable to extend time. Further, the tribunal considered the commentary by the learned author of Harvey in respect of this issue.
THE TRIBUNAL'S DECISION
- In reaching a determination, the tribunal gave due consideration to the respective submissions and to the documentation and evidence before it. In some respects the situation of the claimant is factually distinguishable from the various authorities mentioned above and examined by the tribunal. There appears to be no case made out that the delay on the claimant's part in lodging these proceedings was grounded upon a mistaken belief or a misunderstanding as to the time limits. Although the claimant is not precise in his submission as to when he took advice, there is no doubt that the claimant undertook a course of dealings with at least one legal adviser conversant with employment law and also was in communication with the Equality Commission. That process of seeking advice commenced, if not before, as early as 2002.
- The detailed and comprehensive written submission made by the claimant to the tribunal, diligently prepared and lucidly divided into subject matter and presented by the claimant to the tribunal, illustrates to the tribunal a claimant who possesses a considerable degree of ability to deal with and to compile and organise documentation and to present his thoughts and opinions in written form. His submission contains recent research conducted into topics connected to the Disability Discrimination Act. His prose is lucid and well-constructed; his thought processes are clear.
- Whilst there is no express reference in the material to any research on his part or to any early advice received about statutory time limitations, the claimant is nonetheless candid enough in his written submission and in his application to the tribunal to mention that on 22 December 2003 the Equality Commission informed him of the three month time limit regarding claims of disability discrimination and that in May of 2004, whilst awaiting the outcome of his request for the 'High Level Review' under the grievance procedure, he made enquiries about wrongful dismissal only to be informed that there was a three month time limit which ran from his last day of service. He concedes that he was apparently well out of time.
- Although that enquiry only related to the issue of wrongful dismissal, the tribunal would find it implausible if that, in and around that time and having been so alerted, the claimant would not have made general enquiries concerning the applicable time limitations relating to any potential heads of claim. The tribunal therefore thinks that it is reasonable to conclude from all of this that by May 2004, if not before then, the claimant was conversant with the statutory position in respect of time limitations.
- Regarding the endeavour on the claimant's part to exhaust all internal procedures, such procedures came to an end, without any doubt whatsoever, when the claimant received clear and unambiguous notification by the respondent by way of the said letter dated 9 June 2004 from Claire Jones that the formal grievance procedure was at an end. Notwithstanding the foregoing, the claimant's Originating Application was not received by the Office of Tribunals until 14 February 2005.
- Whilst it is clearly the case that the claimant was suffering from a medical condition and had been so suffering for a period of time, there is no evidence before the tribunal that such condition was of such a disabling nature and of such a character or degree as would have prevented the claimant lodging his complaint within time or caused some such insurmountable obstacle or impediment to the claimant. As mentioned, the written submission and the documentation presented to the tribunal indicates a claimant who possesses quite considerable skills and abilities in regard to communication. The tribunal therefore discounts any possible factor in that regard.
- In his submission, the claimant relies upon a point where he states that there was, as he puts it, "non-disclosure of material and relevant facts e.g. the more definitive report (follow-up report) of Dr McGread to the relevant parties i.e. Mr Doole – "the referrer" and Mr Moore – "the decision taker". The claimant also submits that he had to obtain most of his information under the 'DPA'.
- It is without doubt that the claimant is out of time in respect of all three complaints on the basis of the statutory provisions referred to above. The dismissal in this case took effect on 26 November 2003 and the Originating Application was lodged on 14 February 2005. In regard to the complaints of unfair dismissal and breach of contract, there is nothing to suggest to the tribunal, on the balance of the evidence before it, that it was anything other than reasonably practicable for the complaints of unfair dismissal and of breach of contract to have been presented to the tribunal within time. These complaints are out of time and there is no proper basis upon which time could be extended.
- Regarding the complaint of disability discrimination, the tribunal considered whether it would be just and equitable to consider the case notwithstanding that it has been presented out of time. In contrast to the factual situations applicable to some of the authorities mentioned above, in this case the internal appeals procedure afforded to the claimant had been fully exhausted and the claimant had been clearly and unambiguously informed of that fact by letter dated 9 June 2004, presumably received by him in the normal course of post shortly thereafter. From that time onwards the claimant was fully aware that he had nowhere further to go concerning any internal appeals procedure. There was no disabling or inhibiting factor preventing the claimant from that point onwards from lodging his complaint with the tribunal; he had the mental and the physical capacity, as far as the evidence before the tribunal suggests, to do so.
- In his submission, the claimant relies on what he claims to be a lack of disclosure of material and relevant facts, with reference to a doctor's report via a 'referrer' to a 'decision taker'. However, the tribunal cannot see how anything might be seen to turn upon that, if it were to be correct, to cause the tribunal to reach any different determination.
- Taking everything into consideration, the tribunal determines that in this case it would not be just or equitable to accept the claimant's complaint of disability discrimination given the substantial delay and the fact that there has been provided to the tribunal no adequate explanation by the claimant for his tardiness in that regard. The authorities provide that the jurisdiction of the tribunal to exercise its discretion on the basis of justice and equity must be exercised with regard to the balance of justice as between the claimant and the respondent. In this case the tribunal can see no reason to exercise its discretion in favour of the claimant.
- Accordingly the claimant's complaints are out of time. The tribunal's decision on those listed preliminary issues is as stated at the outset of the decision. In view of the tribunal's determination in regard to these preliminary issues as listed, the tribunal, on foot of Rule 18(5) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, determines that there is no statutory ground upon which the tribunal could proceed to hear and to determine any of the claimant's complaints, and thus the claimant's complaints are dismissed by the tribunal, without further order.
Chairman:
Date and place of hearing: 8 December 2005, Belfast
Date decision recorded in register and issued to parties:
