Hughes v CFS Management Services Limite... [2010] NIIT 06222

THE INDUSTRIAL TRIBUNALS

CASE REF: 06222/09

CLAIMANT: Stephen Hughes

RESPONDENT: CFS Management Services Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the claimant's complaint of unfair dismissal was not presented within the prescribed time limit in circumstances where it was reasonably practicable that it be presented on time. As a consequence the Tribunal have no jurisdiction to consider this complaint and it is hereby dismissed.

Constitution of Tribunal:

Chairman (Sitting Alone) Mrs A Wilson

Appearances:

The claimant appeared in person and was unrepresented.

The respondent was represented by James Hogg, BL, instructed by Mr Brennan, Company Solicitor.

1. The Issue

Has the Tribunal jurisdiction to consider the claimant's complaint in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996?

2. Sources of Evidence

The Tribunal considered the claim form, the response, documents handed in by the parties, the oral testimony of the claimant and the submissions of both parties.

3. Reasons

(1) The claimant was employed by the respondent from the 5 March 2006 until his summary dismissal on the 5 December 2008 on the grounds of gross misconduct.

(2) The claimant was dismissed following a disciplinary hearing on the 5 December 2008 and was confirmed by letter to the claimant dated 8 December 2008. The effective date of termination is 5 December 2008.

(3) By letter dated 11 December 2008 the claimant lodged an appeal against his dismissal and an appeal hearing was arranged for the 5 January 2009.

(4) The claimant was accompanied by his Trade Union representative at both the disciplinary hearing and the appeal hearing and received advice from him in the run up to the dismissal.

(5) Following the appeal hearing on 5 January the decision to dismiss the claimant was upheld and the claimant was informed accordingly.

(6) On or about the 12 January 2009, the claimant met with representatives of an insurance network called Intrinsic who were setting up in business with a view to securing a position with them. They in turn required a "regulated reference" from the respondent which the claimant sought. The claimant was aware that this reference was needed if he was to secure future employment in the financial services industry.

(7) Despite having a policy requiring them to complete and return the regulated reference within 15 days, the reference was not returned by the respondents until 24 February 2009.

(8) The claimant lodged a complaint with the Financial Services Authority regarding the delay in issuing the reference and this complaint was lodged in or around the 24 February 2009.

(9) It is the claimant's case that he did not wish to provoke the respondent by lodging unfair dismissal proceedings prior to receiving the required reference on the 24 February 2009. The Tribunal find that he was aware of his rights to pursue such proceedings at this time i.e. 24 February 2009. However it is also his case as set out on page 14 of his claim form that because he believed himself to have an assured future with Intrinsic he had decided to "let sleeping dogs lie and not to pursue a case for unfair dismissal" against the respondents.

(10) It later transpired that the claimant's dismissal was proving problematic for Intrinsic in receiving regulator approval from the Financial Services Authority and if the claimant were to be employed by them, he would require a reference from the respondents or his dismissal overturned. The regulated reference furnished on the 24 February had proved to be insufficient. In reliance on the sequence of events as set out in his claim form, the Tribunal find that on the balance of probabilities that the claimant became aware that there was a problem with the Financial Services Authority at a time when he was already out of time to lodge Tribunal proceedings. However the Tribunal also find based upon the claimant’s own evidence that proceedings were then lodged in an attempt to secure a reference from the respondent.

(11) It is the claimant's case that following advice he received during a phone call with an unnamed source in the Tribunal office, he wrote a letter dated the 25 February purporting to be a letter of complaint setting out his claim to the Tribunal. He does not have the name of the person in the Tribunal office with whom he spoke but he has produced a document purporting to be a copy of this letter. The Tribunal have no record of receiving this letter and it is not on their file nor was it on file at a Case Management Discussion on the 29 October 2009. It is not mentioned in the chronological series of events carefully outlined by the claimant in his claim form which was ultimately lodged on the 25 June 2009. For these reasons the Tribunal find on the balance of probabilities that this letter was not written in or around February 2009 but was subsequently prepared for the purposes of these proceedings.

(12) Some time in or around April 2009, after the expiration of the 3 month time limit within which proceedings should have been lodged it is the claimant's case that he sought legal advice and became aware of the time limit.

(13) It is the claimant's case also that in or around April 2009 he contacted the Tribunal office to enquire as to the progress of his complaint and was told once again to write a letter to the Tribunal office outlining his complaint and the reasons why it was not lodged in time. He does not have the name of the person with whom he spoke and there is nothing on the Tribunal file to verify this alleged contact. It is his evidence however that he wrote a second letter in or around this time.

(14) The claimant did not receive any acknowledgement of his alleged letter from the Tribunal and a copy of this April correspondence is not available. It is the claimant’s case that as it was saved on his laptop which has since been destroyed. The Tribunal find it unlikely that the claimant would not have made efforts to save a copy of this letter given it's importance prior to destroying the lap top. In any event the onus is on the claimant to prove his case and he has failed to satisfy the Tribunal on this point.

(15) On the 25 June 2009 the claimant once again contacted the Tribunal office. On this occasion it is his evidence that he spoke with a manager, whose name he does not have but who informed him that the time limit within which proceedings should be lodged had expired and advised him to submit his claim using the prescribed form.

(16) The claimant submitted his completed claim form on the 25 June 2009 some 16 weeks after the time limit had expired.

4. The Applicable Law

(1) The law governing the time within which unfair dismissal proceedings must be lodged is set out at Article 145 of the Employment Rights (Northern Ireland) Order 1996 as follows:-

“Complaints to industrial tribunal

145.—(1) A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) 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 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.”

(2) Had the claimant lodged his complaint with the Tribunal on the 25 February as he claims to have done, albeit by letter rather than on the prescribed form, the complaint would have been in time. However the Tribunal do not accept that the claimant wrote to the Tribunal on the 25 February. There is no record on the file of any such correspondence having been received and the claimant does not have the name of the official who allegedly advised him to write to the Tribunal. The claimant significantly does not mention this letter in his claim form to the tribunal and in circumstances where the claimant knew that his application was being lodged out of time, the Tribunal find it inconceivable that he would not have mentioned this letter in the chronological record of events described by him at page 14 of his claim form. Furthermore at an earlier case management discussion held in this case this letter was not produced, rather it was subsequently posted to the Tribunal office.

(3) Having found that the claimant did not present his claim on the 25 February 2009 the Tribunal further find that this claim was not presented within the three month period prescribed by Art 145 (2)(a).

(4) The Tribunal must now consider the provisions of Article 145 (2)(b) and decide whether it was reasonably practicable for the claimant to present his claim on time.

(5) The Tribunal considered relevant case law including the Court of Appeal decision in Palmer and Saunders (appellants) v Southend -on -Sea Borough Council (respondents) 1984 IRLR 119. The following extract is helpful:-

"The meaning of the words "reasonably practicable" from a review of the relevant authorities, lies somewhere between reasonable on the one hand and reasonably capable physically of being done on the other. To construe the words as the equivalent of "reasonable" would be to take a view too favourable to the employee. But to limit the meaning of "reasonably practicable" to that which is reasonably capable physically of being done would be too restrictive a construction. The best approach is to read "practicable" as "feasible" and to ask "was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months"

(6) The Tribunal also considered the case of London International College v Dr R R Sen EAT /344/91 as referred to by the claimant. However in circumstances where the claimant has been unable to persuade the tribunal that he received erroneous advice from Tribunal staff, this case is not helpful.

5. Conclusions

Having evaluated all the evidence the Tribunal find as follows:-

(1) The claimant was represented at both the disciplinary hearing and the appeal hearing by his Trade Union representative. The Tribunal find it was open to the claimant to seek advice from this representative regarding the procedures for lodging proceedings and had he done so it is highly likely that he would have received appropriate advice regarding time limits and were he minded to do so would have lodged proceedings in time.

(2) The claimant lodged a complaint with the Financial Services Authority in or around the 24 February 2009. In these circumstances the Tribunal do not accept the claimant's explanation that he did not wish to provoke the respondent by lodging Industrial Tribunal proceedings.

(3) The Tribunal find based upon the claim form at page 14 that the claimant had made a decision not to pursue proceedings against the respondent and this decision was revised when it became apparent that employment with Intrinsic was subject to a satisfactory reference from the respondent or the overturning of the dismissal. The Tribunal find on the balance of probabilities that this was when the decision to lodge proceedings was taken and at this time the time limit had already expired. For this reason the Tribunal find that the sole reason that this claim was late was because the claimant decided to lodge proceedings at a time when the time limit had already expired.

(4) Based upon the above findings and the applicable law the Tribunal find that it was reasonably practicable for the claimant to present this application on time. Having so found the Tribunal do not need to address the issue as to whether the time within which the complaint was presented was reasonable.

(5) This complaint is dismissed.

Chairman:

Date and place of hearing: 20 January 2010, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hughes v CFS Management Services Limite... [2010] NIIT 06222_09IT (11 February 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/06222_09IT.html Cite as: [2010] NIIT 06222_09IT

Industrial Tribunals Northern Ireland Decisions