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Smyth v Senior Personnel Manager/Head of Employee Relations HR Dept PSNI (Preliminary Hearing) [2003] NIIT 2017_02 (5 December 2003)

THE INDUSTRIAL TRIBUNALS

CASE REFS: 2017/02

166/03

APPLICANT: William Smyth

RESPONDENT: Senior Personnel Manager/Head of Employee Relations

HR Dept, PSNI

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that:-

(i) application Case Reference Number: 2017/02 is out of time but it is just and equitable to extend the time for lodging the proceedings; and

(ii) application Case Reference Number 166/03 is within time.

Appearances:

The applicant was unrepresented.

The respondent was represented by Mrs Neasa Murnaghan, Barrister-at-Law, instructed by The Crown Solicitor's Office.

1. The issue for the tribunal is:-

(i) whether application Case Reference Number 2017/02 and application Case Reference Number 166/03 are within time, and if not;

(ii) whether it is just and equitable to extend the time for lodging the proceedings.

2. Application Case Reference Number: 2017/02
3. The applicant's complaint is that he is a disabled person as defined by the Disability Discrimination Act 1995 because he suffers from Irritable Bowel Syndrome and has done so for approximately 13 years.
4. He alleges that he has been discriminated against by the respondent in the application of its sick absence policy. In August 1997 and January 1999 the applicant received informal warnings for absenteeism. In March 2002 he received a semi-formal warning. His complaint is that the consequence of having received a semi-formal warning is that he was "excluded from consideration for promotion boards and trawl boards and deputising in a higher grade for a period of one year from March 2002. Any further periods of sick absence may result in a formal warning being issued which could lead to [his] dismissal on the grounds of inefficiency and [would] definitely exclude [him] from further promotion boards etc".
5. The Originating Application was lodged with the Office of Tribunals on 30 August 2002. The respondent contended that the act complained of, namely the semi-formal warning, occurred on 11 March 2002 and the application was therefore outside the three month time limit for lodging proceedings, unless the tribunal extended the time on just and equitable grounds.
6. The applicant contended that the matter was "ongoing from 1997 to date".
7. In the event that the tribunal decided that the application was out of time the applicant sought an extension of time for the following reasons:-

(i) Following the semi-formal warning the applicant attended a meeting with Lorraine McNulty who explained the consequences of the warning in terms of promotion opportunities. During this meeting Ms McNulty stated that the respondent had sought advice as to whether the Disability Discrimination Act applied to the applicant. This was the first time that issue had occurred to the applicant.

(ii) The applicant was employed in the Equal Opportunities Unit of the respondent. However, he contended that he did not receive any training in relevant legislation.

(iii) In or about late March or early April 2002, staff from the Equal Opportunities Unit attended a course with the Equality Commission on the issue of Disability Discrimination. Following this training session, the applicant considered his own position, bearing in mind that Lorraine McNulty had raised the issue of disability discrimination at her meeting with the applicant on 20 March.

(iv) On 2 May 2002 the applicant lodged an appeal against the semi-formal warning.

(v) On 16 May 2002 he received a letter telling him that the appeal was being considered.

(vi) On 15 August 2002 the applicant received a letter telling him that his appeal was unsuccessful. The letter was dated 24 July 2002 and had been sent via the normal channel of the applicant's line manager who had been on leave until 14 August 2002.

(vii) Within a matter of days of his appeal being rejected, the applicant consulted with the Equality Commission and he lodged proceedings on 30 August 2002.

(viii) The applicant insisted that he was unaware of the time limits for lodging proceedings because the Disability Discrimination legislation did not apply to the PSNI. He only became aware of the time limits when he sought advice from the Equality Commission in August following the rejection of his appeal.

(ix) He produced a copy of the training notes which he had received from the Equality Commission in late March/early April 2002 which confirmed that time limits were not discussed during the training.

(x) The applicant also explained that he had been employed by the respondent for 25 years. He therefore tried to resolve the matter internally. He had never sought advice externally throughout his employment.

8. The tribunal is satisfied that the Originating Application is out of time, because in our view, the act complained of was a one-off act in March 2002 with continuing consequences, rather than a continuing act. (Cast v Croydon College [1998] IRLR 318 CA.)
9. The tribunal went on to consider whether there were just and equitable grounds for extending the time for lodging the complaint. Harvey on Industrial Relations and Employment Law sets out a non-exhaustive list of factors which may prove helpful in assessing individual cases:-

(a) the presence or absence of any prejudice to the respondent if the claim is allowed to proceed (other than the prejudice involved in having to defend proceedings);

(b) the presence or absence of any other remedy for the applicant if the claim is not allowed to proceed;

(c) the conduct of the respondent subsequent to the act of which complaint is made, up to the date of the application;

(d) the conduct of the applicant over the same period;

(e) the length of time by which the application is out of time;

(f) the medical condition of the applicant, taking in account, in particular any reason why this should have prevented or inhibited the making of any claim;

(g) the extent to which professional advice on making a claim was sought and if it was sought, the content of any advice given.

Whether the just and equitable test is satisfied is primarily a question of fact for the tribunal to interpret in the exercise of its discretion.

10. The tribunal is satisfied that in all the circumstances it would be just and equitable to extend the time for lodging proceedings for the following reasons:-

(1) The respondent did not submit that there would be any prejudice attaching to it if time were to be extended.

(2) The applicant had attempted to resolve the matter internally by lodging an appeal. No explanation was given to the tribunal for the substantial delay in informing the applicant that his appeal was unsuccessful.

The appeal was lodged on 2 May 2002. The letter communicating the outcome was dated 24 July 2002. The applicant was not informed of the contents of the letter until 15 August 2002.

It is clear that delay in lodging proceedings which is caused by the applicant lodging an internal appeal will not automatically justify time being extended.

However, it is one factor which the tribunal must consider when looking at all the circumstances. (Adekeye v Post Office [1993] IRLR 324.)

(3) The tribunal is satisfied that had the applicant been informed at an earlier stage that his appeal had been unsuccessful, his proceedings would have been lodged earlier. There appears to have been an inordinate delay in communicating to the applicant the outcome of the appeal, and as already stated we have been given no explanation for that delay. We are also satisfied that due to his lengthy employment with the respondent it was reasonable for the applicant to attempt to resolve matters internally rather than seeking external advice.

(4) We are also satisfied that the applicant had no knowledge of the time limits for lodging a complaint until he sought advice from the Equality Commission within a matter of days of his appeal being rejected. On receipt of that advice, proceedings were lodged very promptly.

11. Accordingly, the tribunal does extend the time for lodging the proceedings until 30 August 2002.

Case Reference Number: 166/03

12. The applicant lodged a subsequent Originating Application on 7 January 2003. In that application he complained that "in November 2002 two separate trawl notices were issued for the posts of Business Manager and Personnel Manager/Officer. Both these posts were graded as EOI posts, the grade which I presently am. I sought clarification from the Human Resources Department as to my eligibility to apply for these vacancies only to be informed that I was excluded from applying for the competition because of my semi-formal warning. I believe that the respondent's treatment of me is unlawful discrimination contrary to the Disability Discrimination Act 1995."
13. The applicant gave evidence that when he received notification of the semi-formal warning in March 2002, and met with Ms McNulty to have the implications of the warning explained to him, he was unclear as to whether he was excluded from promotion boards and trawls only, or whether he was also excluded from trawls for posts at his own grade.
14. In or about late July or August the applicant spoke to Mrs Bertha Mawhinney who at that time was Senior Regional Personnel Officer. She was of the opinion that some people within the respondent organisation had been allowed to apply for "same-grade" trawls in similar circumstances to the applicant. She was not entirely sure, however.
15. The trawls for which the applicant applied were same-grade and were the first positions he had been interested in applying for since March 2002.
16. The tribunal accepts that there was a degree of uncertainty in the applicant's mind as to whether the effect of the semi-formal warning was that he was also excluded from "same-grade" trawls.
17. The respondent contends that because the decision to exclude him from these posts was a consequence of the March warning, the application is out of time since time runs from the date of the warning.
18. We do not accept that submission. Clearly, the applicant could not have made a specific complaint in relation to these two posts until his applications had been rejected. Therefore, the application is not out of time.
We consider that the respondent's real contention is that the applicant should not be permitted to bring this second application because it is a consequence of the semi-formal warning which was given in March 2002, and which is the subject of the first application.
19. Whether the applicant is entitled to bring this specific complaint, or whether it is merely evidence of detriment, should he be successful in the first application, is not a matter for this preliminary hearing. Both parties may make submissions, if they wish, at the end of the case. The only issue for this preliminary hearing is whether the application is within time and if not, whether time should be extended.
For the reason given at Paragraph 18. we are satisfied that the application is within time.

Chairman:

Date and place of hearing: 5 December 2003, Belfast

Date decision recorded in register and issued to parties: