Russell v Ministry of Defence  (Preliminary Issue - Jursidiction)  (16 Sept)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	3534/01

APPLICANT:		Clive Russell

RESPONDENT:		Ministry of Defence

DECISION ON A PRELIMINARY ISSUE

The decision of the industrial tribunal, by a majority, is that the tribunal has jurisdiction to determine the applicant’s complaint.
Appearances:
The applicant, Mr Clive Russell, in person.
The respondent was represented by Ms S Bradley Barrister-at-Law, instructed by the Crown Solicitor’s Office.

1.	The tribunal considers that reasons given in summary form would not adequately explain the grounds for its decision.  Consequently, these reasons are given in extended form.

2.	(i)	The issue in this case is whether the applicant, a serviceman, is precluded from bringing complaints to an industrial tribunal because his service redress complaint was ruled out of time by the military authorities.  The applicant’s complaints to the industrial tribunal alleged breaches of the Working Time Regulations (Northern Ireland) 1998, and of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 (referred to in this decision as the Regulations of 1998 and 2000).  Regulation 37(2) of the 1998 Regulations, and Regulation 13(3) of the 2000 Regulations, provide that a member of HM Forces, who wishes to bring a complaint before an industrial tribunal, should first of all have recourse to the service redress procedure laid down by Section 180 of the Army Act 1955 (as substituted by Section 20(1) of the Armed Forces Act 1996).	
			
	(ii)	The facts necessary to determine the preliminary issue are set out in the succeeding paragraphs.  Additionally, the tribunal heard evidence from Major Paul Hockley, a Legal Officer serving with the Army Appeals Wing in Glasgow.  His evidence was not challenged by the applicant.	
			
3.	(i)	The applicant, Mr Russell, at the relevant time, was a part-time soldier in the 3rd (County Down and County Armagh) Battalion of the Royal Irish Regiment.  He served as a platoon sergeant in the Battalion’s area of operations, in Lurgan, Portadown and Banbridge.	
			
	(ii)	Although engaged as a part-time soldier, he was working on a full-time basis.	
			
	(iii)	The applicant’s complaints related to matters such as lack of entitlement to paid leave, sickness benefit and the fact that he did not have the same access to a pension scheme and other benefits compared to someone whose status as a full-time soldier was permanent and undisputed.	
			
	(iv)	Both the applicant and the respondent agree that 1 May 2001 was the relevant date so far as the matters in respect of which the applicant’s complaints are concerned.	
			
	(v)	The applicant invoked the service redress procedure in respect of his complaints on 18 August 2001.	
			
	(vi)	The service redress procedures should have been invoked by him on or before 1 August 2001.  The applicant accepts that this is the case.  Section J5 204C of Queen’s Regulations for the Army 1975 provides that complaints under the internal redress of grievance procedures must be submitted in writing within three months beginning on the day on which the matter complained of occurred.  By virtue of Section J5 204E, complaints outside the time limits will be rejected as ‘out-of-time’ unless the officer to whom the complaint is first presented judges that it was not reasonably practicable for the complaint to have been submitted earlier.	
			
	(vii)	On 29 October 2001, the applicant, by an originating application dated 27 October 2001, presented his complaint to the industrial tribunal.  It is accepted by the respondent that these complaints were presented within the time limits prescribed by the 1998 and 2000 Regulations.  A six month time limit applies to servicemen (as opposed to the usual three month limit).  This extended time limit for servicemen is clearly to take account of the fact that they, unlike other applicants, have to overcome the procedural hurdle of going through the service redress procedures.	
			
	(viii)	The applicant’s application for redress was considered by an appropriate officer in the chain of command.  It was held that there were no grounds on which to extend the time limit laid down by Queen’s Regulations.  The applicant was notified on 8 November 2001 by Headquarters Northern Ireland that his complaint had been rejected as ‘out-of-time’, as it was submitted outside the three month time limit.  He was told (as were others in the same position) that “[t]his does not affect your access to Industrial Tribunal”.	
			
	(ix)	Major Hockley very fairly volunteered to the tribunal that at that time some officers who were involved in the workings of redress procedures took the view that an application which was out-of-time by virtue of Queen’s Regulations could still constitute the making of an application for redress for the purposes of the condition precedent to the presentation of a complaint to a tribunal.  (This was not Major Hockley’s own view.)	

4.	It was urged by Ms Bradley BL, for the respondent, that where, as in Mr Currie’s case, a redress complaint was ruled out of time by the Army, it was not a valid complaint under the service redress procedure with the result that the applicant was precluded from pursuing his application before the tribunal.

5.	(i)	All members of the tribunal take the view that a decision as to whether it was reasonably practicable for an applicant to make a complaint within the time limits laid down by service redress procedures is a matter which is entrusted to the military authorities by virtue of Queen’s Regulations and the Army Act 1955; and that the way in which they exercise their discretion in this regard is not something which can be re-opened by an industrial tribunal.	
			
	(ii)	There is, however, a dearth of authority on the point raised by Ms Bradley at Paragraph 4 above, and in the absence of the citation of any authorities to the tribunal, it has been necessary to consider the wording of the legislation, its purpose and the context in which it arises.	
			
6.	(i)	A majority of the tribunal hold that the fact that the applicant’s service redress complaint was out-of-time does not preclude him from presenting his complaint to an industrial tribunal for the following reasons:-

(a)	They consider that as a matter of ordinary language a complaint which is               out-of-time under service redress procedures is still a complaint which has been ‘made’ under the Regulations of 1998 and 2000.  In the context of industrial tribunal or other judicial proceedings, one would nonetheless refer to complaints as having been ‘made’ even if they were out-of-time.  They note, as pointed out above at Paragraph 3 (ix) that this view was apparently taken at one time by some in the military, though that view cannot be determinative of the issue, which is a matter for the tribunal.

(b)	Although the complaint was out-of-time it still had the potential to be accepted and considered as a valid complaint had the applicant been able to satisfy his superiors in the military that it had not been reasonably practicable for it to have been submitted earlier.

(c)	The majority consider that the purpose of the redress procedure is to enable the military authorities to have prior notice of complaints with the prospect of being able to grant redress without the necessity for judicial proceedings.  This objective has been achieved, notwithstanding that the application for redress is out-of-time.

(d)	They also consider that to treat an out-of-time redress complaint as invalid and ineffective is to give an unnecessarily restrictive interpretation to the Regulations, and is to read into them an additional hurdle for an applicant which is not there.	
			
	(ii)	The chairman, while accepting the force of the majority view, finds himself unable to concur in it.  He considers that an out-of-time application cannot be valid.  In these circumstances the applicant has not satisfied the condition precedent in the Regulations to bring a complaint before an industrial tribunal.  He does not regard the time limits specified in Queen’s Regulations to be merely administrative or internal army guidelines.  He considers that they have the same force of law by virtue of the Army Act 1995 as time limits under employment law.  He does not consider these time limits are directory, as opposed to mandatory.  Time limits of this nature are imposed for good reason and are generally to be adhered to and given effect (unless parties can bring themselves within specified exceptions, such as the ‘reasonably practicable’ rule, which the applicant failed to do here).  If there are no sanctions for failure to observe time limits they become meaningless.  The ‘reasonably practicable’ exception in Queen’s Regulations mirrors that expression as commonly enacted in employment law.  It is strictly construed in the latter content, and it would be incongruous to disregard it in Queen’s Regulations.  The chairman is also influenced in his conclusion by the fact that service personnel are given additional time to present complaints under the Regulations of 1998 and 2000, clearly to compensate for the additional hurdle that invoking service redress procedures involves. 

He does not consider that requiring strict adherence to the time limits imposed by military law makes it excessively difficult or impossible for the applicant to exercise his rights.	

6.	The tribunal therefore decides, by a majority, that the applicant is not precluded from presenting his complaints to an industrial tribunal because his service redress procedure was ruled out-of-time.

Chairman:

Date and place of hearing:  16 September 2002 at Belfast

Date decision recorded in register and issued to parties: