Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1647/16

 

 

 

CLAIMANT: A

 

 

RESPONDENTS: 1. X Ltd

2. B

3. C

4. D

5. E

6. F

7. G

 

 

 

DECISION ON A PRE-HEARING REVIEW

(A) The claimant's claim of unfair dismissal is dismissed as it was not presented within the relevant primary time-limit (of three months) and I am not satisfied that it was not reasonably practicable for that complaint to be presented before the end of that period of three months.

 

(B) The claimant's claim of discriminatory dismissal, brought under the Sex Discrimination (Northern Ireland) Order 1976 ("the SDO"), is dismissed because it was not presented within the relevant primary time-limit provided for in Article 76(1) of that Order and it is not just and equitable, pursuant to paragraph (5) of that Article, nevertheless to consider that complaint.

 

(C) Each of the claimant's SDO claims in respect of discriminatory detrimental treatment is dismissed because, in each instance, the relevant claim was not presented within the relevant primary time-limit provided for in Article 76(1) of the SDO and it is not just and equitable, pursuant to paragraph (5) of that Article, nevertheless to consider that complaint.

 

(D) Each of the claimant's SDO claims in respect of harassment is dismissed because, in each instance, the relevant claim was not presented within the relevant primary time-limit provided for in Article 76(1) of the SDO and it is not just and equitable, pursuant to paragraph (5) of that Article, nevertheless to consider that complaint.

 

(E) The claimant's claim in respect of annual leave is dismissed because it was not presented within the relevant primary time-limit (of three months) and I am not satisfied that it was not reasonably practicable for that complaint to be presented before the end of that period of three months.

 

(F) The claimant applied for leave to amend his claim form, so as to include (in respect of Acts (1)-(9), as listed at paragraph 9 below) discrimination and harassment claims under the Race Relations (Northern Ireland) Order 1997. Each of those applications is refused.

 

(G) The claimant applied for leave to amend his claim form, so as to include (in respect of Acts (1)-(9), as listed at paragraph 9 below) discrimination and harassment claims under the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003. Each of those applications is refused.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Buggy

 

Appearances:

 

The claimant was self-represented.

 

X Ltd and the respondents B, C, D and E were represented by Ms H.I., a director of
X Ltd.

 

The respondent F was not present or represented.

 

The respondent G was not present or represented.

 

REASONS

 

1. The claimant is of Lithuanian nationality. From May 2013 until a date in January 2016, the claimant was employed by the respondent company X Ltd ("the Company"), at a work location in Northern Ireland.

 

2. All of the individual respondents to these proceedings were work colleagues of the claimant at the time when he was employed by the Company. Respondents B and C are British or Irish. Each of the other individual respondents is a Lithuanian.

 

3. According to the claimant's version of events, the making and publication of each of two videos ("the videos") are matters which are of considerable contextual importance in this case.

 

4. According to the claimant, the first of those videos is a recording of consensual heterosexual sexual activity in which he participated. According to him, that video ("video 1") was made without his knowledge or consent and it was subsequently circulated on the internet without prior knowledge on his part and without his consent.

 

5. According to the claimant, the second of those videos ("video 2") is a recording of activity of a sexual nature which was carried out in relation to himself without his knowledge or consent. He says that video 2 was made without his knowledge or consent and that it was subsequently circulated on the internet without prior knowledge on his part and without his consent.

 

6. The effect of rule 49 of the Industrial Tribunals Rules of Procedure ("the Rules") is that, in any proceedings involving allegations of the commission of a sexual offence an employment judge is obliged to omit from any Decision, which is available to the public, any identifying matter which is likely to lead members of the public to identify any person affected by or making such an allegation.

 

7. In my view, in making the allegation which has been set out at paragraph 5 above, the claimant has made an allegation of the commission of a sexual offence. Accordingly, pursuant to rule 49, I have omitted from this Decision any identifying matter which is likely to lead members of the public to identify any person affected by or making such an allegation.

 

The Acts

 

8. In this Decision, "an Act" means an act or omission in respect of which compensation is claimed (as distinct from an act or omission which is of merely contextual or evidential significance).

 

9. In these proceedings, the Acts alleged by the claimant are as follows:

 

(1) The claimant alleges that, on a date during the first quarter of 2015, respondent G showed him, through a gesture, that he was threatening to cut the claimant's head off.

 

(2) The claimant alleges that, at some time during the year 2015, respondent D, through gestures, made reference to one of the videos; and that this was done in the presence of the clamant's colleagues.

 

(3) The claimant alleges that, in November or December 2015, during working time and on work premises, a work colleague (who is not a respondent to these proceedings) showed one of the videos to other colleagues.

 

(4) The claimant alleges that, in December 2015, respondent F showed one of the videos to other work colleagues of the claimant, within the workplace.

 

(5) The claimant alleges that, in December 2015, a work colleague told him that if he (the colleague) was in the claimant's place, he would think it better to disappear from the workplace.

 

(6) The claimant alleges that, during the month of January 2016, respondent C made disparaging and teasing remarks to the claimant, which were references to one of the videos.

 

(7) The claimant alleges that, on a date near the end of the year 2015, respondent B and respondent E made disparaging and teasing remarks and/or gestures, to the claimant, in relation to one of the videos.

 

(8) The claimant alleges that, in December 2015, a storeman who was a colleague of the claimant in the Company, and who is not a respondent to these proceedings, made comments to respondent E, in the presence of the claimant, which were disparaging and teasing references to one of the videos.

 

(9) The claimant also complains about the termination of his employment.

 

(10) The claimant says that, at the time of the termination of his employment, he had holiday leave which was still untaken, and that he had an entitlement to the cash equivalent of that untaken leave, but was not provided with that cash equivalent.

 

The causes of action

 

10. In the following paragraphs I refer again to the Acts which have been listed at paragraph 9 above.

 

11. In the present context, a "cause of action" is a legal basis for making a claim in respect of a particular Act.

 

12. In respect of each of the Acts, I now wish to list the cause of action, or the causes of action (according to the claim form as currently drafted).

 

13. In my view, it is appropriate to construe the claim form, as currently drafted, as a claim form which specifies two alternative causes of action in respect of Act (1) - (8) as listed at paragraph 9 above. In my view, those causes of action are as follows:

 

(1) unlawful discriminatory detrimental treatment, contrary to Article 8(2) of the SDO; and

 

(2) unlawful harassment, contrary to Article 8(2A) of that Order.

 

14. Article 8(2) of the SDO makes it unlawful for an employer, in the case of a man employed by it, to discriminate against him by dismissing him or subjecting him to any other detriment. It is clear law that, if the relevant detrimental discrimination is perpetrated by a work colleague of the victim of that detrimental discrimination, the employer will be liable in respect of that discrimination, unless that employer can establish the defence which is provided for in paragraph (3) of Article 42 of the SDO.

 

15. Article 6A of the Sex Discrimination (Northern Ireland) Order 1976 ("the SDO") contains the definition of "harassment" for the purposes of that Order. The effect of paragraph (2A) of Article 8 of that Order is to make it unlawful for an employer, in relation to employment by it, to subject to harassment any man whom that employer employs. Furthermore, paragraph (2B) of the same Article provides that, for the purposes of paragraph (2A), the circumstances in which an employer is to be treated as subjecting a man to harassment include those where:

 

"(a) a third party subjects [the man] to harassment in the course of [his] employment, and

 

(b) the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so."

 

16. For the purposes of the unfair dismissal legislation and also for the purposes of the various employment discrimination enactments, the concept of "dismissal" includes "constructive dismissal". An employee is treated as having been constructively dismissed if the employer breached his contract, and the relevant breach/breaches was/were a repudiatory breach/repudiatory breaches and the claimant resigned as a response to that breach/those breaches.

 

17. Act (9) is a complaint in respect of the termination of the claimant's employment. My understanding is that, according to the claimant, Acts (1)-(8) inclusive constituted inappropriate and unfair treatment which caused him to resign from his employment. Accordingly, it is proper to regard the claim form as incorporating an assertion that the termination of the claimant's employment was "constructive" dismissal.

 

18. Against the background indicated in paragraphs 16 and 17 above, I consider that it is appropriate to regard the claim form, as currently formulated, as specifying two causes of action in respect of Act (9). Those causes of action are as follows:

 

(1) constructive unfair dismissal, contrary to Article 126 of The Employment Rights (Northern Ireland) Order 1996 ("ERO").

 

(2) an unlawful gender-discriminatory constructive dismissal, contrary to Article 8(2) of the SDO.

 

19. Act (10) is the holiday pay claim. I consider that it is appropriate to construe the claim form as specifying the following causes of action in respect of Act (10):

 

(1) breach of contract;

 

(2) an unlawful deduction of wages claim, brought under Article 55 of ERO; and

 

(3) a claim brought under sub-paragraph (b) of paragraph (1) of regulation 30 of the Working Time Regulations (Northern Ireland) 1998 ("WTR"), in respect of an alleged entitlement to "compensation related to entitlement to leave". (In relation to that alleged entitlement, see regulation 14 of the WTR).

 

The evidence

 

20. I received oral testimony from the claimant. In determining this Pre-Hearing Review ("PHR"), I also took account of all the documents which were referred to during this PHR hearing.

 

The scope of this PHR

 

21. This PHR was originally scheduled for the purpose of determining only whether an industrial tribunal lacked jurisdiction, because of time-limit issues, in respect of any one, or more, or all, of the current claims (the claims currently contained in the claim form).

 

22. However, during the course of the PHR hearing, the claimant asked for leave to amend his claim form, so as to include the claims which are referred to at paragraphs (F) and (G) on page 2 of this Decision. Accordingly, without objection from Ms H.I., the scope of this PHR was expanded so as to include determinations in respect of those applications for leave to amend.

 

23. On 15 November 2016 (the date of the hearing of this particular PHR), this case was also scheduled for the holding of a Deposit Order PHR. However, because of the outcome of this particular PHR, the question of whether the claimant should be required to pay a deposit is no longer a relevant question.

 

The facts

 

24. The claimant resigned from his employment in X Ltd. That employment came to an end during the month of January 2016.

 

25. However, he did not commence these proceedings until 1 July 2016, which was at least five months later.

 

26. Many of the Acts (see above) occurred long before the termination of the claimant's employment.

 

27. Why did the claimant not start these proceedings on a much earlier date than 1 July 2016? According to the claimant's oral testimony, the sole reason for delay was that he was distracted by the fact that he had made a report to the police in relation to some of the acts and omissions which constituted the subject-matter of the Acts.

 

The two types of time-limit and the relevant legal issues

 

28. Article 145(2) of ERO provides that an industrial tribunal is not entitled to consider a complaint of unfair dismissal 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."

 

29. In relation to breach of contract, unlawful deduction of wages claims, and WTR regulation 30(1) claims, the respective time-limit provisions are, in substance, identical to the provisions of Article 145(2) of ERO.

 

30. Accordingly, in relation to the unfair dismissal claim and in relation to each of the claims which are referred to at paragraph 29 above, the main issues, in respect of the relevant time-limit provisions, are as follows:

 

(1) Was the claim presented before the end of the primary time-limit (of three months)?

 

(2) Am I satisfied that it was not reasonably practicable for the claim to be presented before the end of that primary time-limit?

 

(3) If I am so satisfied, was the claim presented within such further period as I consider to be reasonable?

 

31. Article 76 of the SDO provides the time-limits within which proceedings under that Order are to be brought.

 

32. In the circumstances of this case, the effect of Article 76(1) is that the primary time-limit for bringing a claim is a three month period beginning with the date of the Act.

 

33. In the same circumstances, paragraph (5) of Article 76 goes on to provide what amounts to a secondary time-limit. Article 76(5) provides as follows:

 

"(5) A ... tribunal may nevertheless 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".

 

34. Provisions in respect of time-limits in relation to claims brought under the Race Relations Order ("the RRO") are contained in Article 65 of the RRO. The RRO's time-limit provisions are, in all material respects, practically identical to the time-limit provisions of the SDO.

 

35. The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 ("SOR") contain provisions in respect of relevant time-limits (in respect of the period within proceedings have to be brought under the SOR). Those provisions are set out at regulation 41 of the SOR.

 

36. The SOR's regulation 41 time-limit provisions are practically identical, in all material respects, to the time-limit provisions of the SDO which have been referred to at paragraph 32 above.

 

37. Accordingly,

 

(1) in the context of each of the SDO claims which the claimant has set out in his claim form,

 

(2) in the context of each of the RRO claims which would now like to bring, and

 

(3) in the context of each of the SOR claims which the claimant would now like to bring,

 

a key issue is as follows: Even though the relevant complaint has not been brought, or will not have been brought, within the relevant primary time-limit, do I, in all the circumstances of the case, consider it to be just and equitable for a tribunal, nevertheless, to consider that complaint?

 

Reasonably practicable?

 

38. In relation to each of the claims which are referred to at paragraph 30 above:

 

(1) I am sure that that claim was not presented within the primary time-limit of three months.

 

(2) I am not satisfied that it was not reasonably practicable for the claimant to bring the relevant claim within that primary time-limit.

 

39. It will be recalled that the claimant's explanation for his delay in commencing these tribunal proceedings is that he was distracted by the fact that, as he hoped, a police investigation, in relation to some of the factual bases for the relevant Acts, was then ongoing.

 

40. In respect of each of the paragraph 30 claims, I am sure that any such distraction did not render it not reasonably feasible for the claimant to present that claim within the relevant primary time-limit period.

 

41. For that reason, in respect of each of the paragraph 30 claims, an industrial tribunal is deprived (because of the time-limit provisions) of jurisdiction to entertain that claim. Accordingly, each such claim must be dismissed.

 

Is it, or would it be, just and equitable to extend time?

 

42. As already noted above, in respect of:

 

(1) each of the discrimination claims which the claimant has made, or would like to make, and

 

(2) each of the harassment claims, which the claimant has made, or which he would like to make,

 

the primary time-limit is a period of three months from the date of the carrying out of the act/s or omission/s which constitutes/constitute the relevant Act.

 

43. In every relevant instance, the relevant primary time-limit period must have begun by the end of January 2016, at the latest. However, none of the SDO claims was brought until July 2016 and the applications for leave to amend were not made until November 2016.

 

44. Accordingly, in the context of each of the relevant discrimination and harassment claims (both the claims which the claimant already makes and the claims which he would like to make, if he were to be granted leave to amend in accordance with his applications) the key issue is as follows: Even though the relevant claim has not been brought within the primary time-limit, is it nevertheless just and equitable for an industrial tribunal to consider the relevant complaint?

 

45. In the SDO, in the RRO, and in the SOR, the relevant primary time-limit, for presenting a claim of discrimination or harassment, is a very short period of three months. In deciding the "just and equitable" question, I have to have regard to the consideration that the legislator has prescribed very short primary time-limits, which indicates a legislative policy that relevant discrimination or harassment proceedings should be begun quickly.

 

46. In considering the "just and equitable" question, it is of course appropriate to consider the degree to which the provisions of the primary time-limit prejudice the claimant and the degree to which any decision to extend the time-limit would prejudice the respondent.

 

47. In considering the latter issue it is, in my view, appropriate to have regard to the duration of the delay, and to the extent to which, the quality of the relevant evidence is likely to be affected by that delay.

 

48. I recognise that the potential prejudice to a claimant, if the primary time-limit provisions prevent him from pursuing relevant claims, and the prejudice to a respondent if any relevant primary time-limit provision is disapplied, tend to equal and opposite. Against that background, it seems to me that the extent of any effect of the delay (in bringing the relevant claim), upon a particular respondent's ability to defend a relevant claim, is of considerable importance.

 

49. In this case, in respect of each relevant claim, the delay period was of relatively substantial duration. (In particular, many of the matters which are at the heart of the claimant's current and potential discrimination and harassment claims occurred long before his employment came to an end). Furthermore, many of the alleged Acts are fact-sensitive (as distinct from relating to matters which are not denied, or which can easily be confirmed or refuted through documentary evidence).

 

50. I do not regard the claimant's explanation for the delay (the fact that he chose to focus on the criminal investigation, or that he was distracted by the fact that a criminal investigation was ongoing) as a "good" reason for delay.

 

51. Against the background referred to at paragraphs 42-50 above, and for the reasons set out at those paragraphs, I have arrived at the following conclusions.

 

52. First, I have decided that it would not be just and equitable to disapply the primary time-limit in respect of any of the claims which the claimant is currently making under the SDO. Accordingly, all of those claims must be dismissed.

 

53. Secondly, I have decided that, if the RRO claims which the claimant now wishes to make had been included in the claim form as originally presented, an industrial tribunal would have lacked jurisdiction to consider those claims because of the time-limit problem.

 

54. Thirdly, I have decided that if the SOR claims which the claimant now wishes to make had been included in the claim form as originally presented, an industrial tribunal would have lacked jurisdiction to entertain those claims because of the time-limit problem.

 

Determinations in respect of the amendment applications

 

55. I fully realise that the expiry of a relevant statutory time-limit is not a factor which, in itself, in all circumstances, provides an adequate basis for refusing to grant leave to amend. (In each relevant instance, I retain a vestigial discretion to grant or refuse the relevant amendment application).

 

56. Instead, a tribunal, in considering an amendment application, must have regard to all the circumstances and, in particular, have regard to the relative degree of prejudice to the claimant (if the application for leave to amend is refused), and to the respondent (if the application for leave to amend is accepted).

 

57. However, in the particular circumstances of this case, in considering those relative degrees of prejudice, the following question is of particular importance: Has a respondent's ability to effectively defend itself, or himself, been substantially diminished (because of the delay in presenting the claim)? Accordingly, in considering each of the applications for leave to amend, I have had particular regard to that question.

 

58. As already noted above, I have concluded that, by July 2016, each respondent's ability to efficiently defend himself or itself, against the RRO claims and/or against the SOR claims, had been substantially diminished (in comparison to the ability to do so that it would have had or he would have had if each of the relevant claims had been made promptly).

 

59. Against that background, I have decided not to grant leave to amend the claim form so as to include any of the proposed RRO claims.

 

60. Against that background, I have also decided not to grant leave to amend the claim forms so as to include any of the proposed SOR claims.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 15 November 2016, at Belfast

 

 

Date decision recorded in register and issued to parties: