THE INDUSTRIAL TRIBUNALS

CASE REF:	2559/02

CLAIMANT:	Liz Courtney as the Personal Representative of George Murdock (deceased)

RESPONDENTS:		1.	Royal Irish Regiment Headquarters
				2.	Ministry of Defence 

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the originating claim was not presented within the respective time limits stipulated by Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 and Regulation 8(2) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000.
The tribunal further decides that it was reasonably feasible for the originating claim to have been presented within the time limit stipulated by the Working Time Regulations (Northern Ireland) 1998 and that it is not just and equitable to extend the time limit for presenting the originating claim pursuant to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000.

Constitution of Tribunal:
Chairman (sitting alone):		Ms J Knight

Appearances:
The claimant appeared in person and represented herself.
The respondents were represented by Ms S Bradley, Barrister-at-Law, instructed by The Crown Solicitor’s Office.

Issues

1.	The issues to be determined by the tribunal were:-

Whether or not the claim had been presented within the respective time limits stipulated by Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 and Regulation 8(2) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000.

If not, should the tribunal exercise its discretion to extend the time for presenting the claim?

2.	The tribunal considered the originating claim of Mr George Murdock (deceased) and the oral evidence of the claimant and Mr David Millar on behalf of the claimant, the respondent’s response  and documentation furnished by the parties.

3.	The tribunal found the following facts to be proved on the balance of probabilities:-

(1)	The claimant, Ms Liz Courtney, was the partner and is the personal representative of George Murdock who died on 29th May 2005. Mr Murdock served as a part-time soldier in the Royal Irish Regiment Home Service Part Time (HSPT) from August 1982 until his discharge as retired on 17 December 2001.  Under his terms and conditions of service, Mr Murdock was not entitled to receive holiday pay or an army pension like his colleagues in full-time service. The tribunal was satisfied that due to her close relationship with the deceased, the claimant has personal knowledge of the events connected with and leading up to Mr Murdock’s originating claim to the industrial tribunal and assisted him by typing his correspondence to the respondent and its representative.	

(2)	On 29 October 2001, Mr Murdock wrote to Major Morton, the      officer-in-command of the 2nd Royal Irish Regiment, requesting written confirmation of his retrospective entitlement to an army pension.  The letter referred specifically to Article 8(8) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 claiming that, “Under this legislation part-time soldiers would be entitled to pro rata treatment of any rights of our full-time colleagues”.  This letter was drafted by Mr David Millar, who served with Mr Murdock and who recalled an occasion when he was sitting in the store at work, discussing with Mr Murdock a copy of the Part Time Workers (Less Favourable Treatment) Regulations (Northern Ireland) 2001. He discussed with Mr Murdock the “bits” of the Regulations that he thought were relevant. In particular they considered Regulation 8 in order to establish the date of the “less favourable treatment” and the time limits for submitting a complaint to the tribunal. 

(3)	Mr Millar has lodged a similar complaint with the industrial tribunal. Mr Millar did not suggest to Mr Murdock that he should seek legal or other advice in relation to his employment rights. It was his opinion that the time for lodging a complaint did not start to run until Mr Murdock knew that he was “wronged” and that Mr Murdock did not know that he was wronged until September 2002. However the claimant accepted that the time for lodging the complaint to the tribunal effectively began to run on his retirement, when Mr Murdock ceased to accrue any potential entitlement to pension or holiday pay. The claimant told the tribunal that Mr Murdock did not seek any legal advice because as a member of the security forces he thought that this would compromise his personal safety.
 
(4)	 Mr Murdock received a response dated 15 November 2001 advising him that the 2nd Royal Irish Regiment had not received official notification that part-time soldiers or that HSPT soldiers were to be awarded an army pension but that the issue was being discussed at Ministry of Defence level. As  Mr Murdock was due to retire on 17th December 2001 he wrote to the respondent on 3 December 2001 stating that he wished to register a formal complaint with his commanding officer in relation to the failure to confirm his entitlement to a pension.  He was duly discharged as retired from the 2nd Royal Irish Regiment on 17 December 2001.  He was admitted into hospital on 7 January 2002 for major thoracic surgery which required a recuperative period to some six to eight months.  

(5)	On 28 January 2002 the respondent wrote to Mr Murdock acknowledging and formally registering his complaint.  However, Mr Murdock was advised that his complaint had been submitted in an incorrect format and he was requested to complete and return a form (Annex B/70) application for redress of complaint under Section 180 of the Army Act 1955 so that his complaint could be processed. Section 180 of the Army Act 1955 provides that a person subject to military law who thinks himself wronged in any matter relating to his service, may make a complaint to a superior officer according to the procedures laid down in the Queen’s Regulations for the Army. This is effectively an internal grievance procedure. 

(6)	Mr Murdock submitted his complaint to his commanding officer on the correct form dated 6th March 2002. This was then referred to the Army Board as it was considered that Mr Murdock’s complaint involved army policy.  On 22 August 2002 the Army Appeals Wing wrote to Mr Murdock that it was now investigating his complaint and enclosed  a copy of the Guidance Notes concerning redress procedures. Paragraph 3 of the notes under the heading “Regulations and The Rights of the Complainant states: “The above regulations also apply in the case of applications to Employment Tribunals (ETs). Since 1st October 1997, Service personnel can take complaints concerning sex discrimination, race discrimination, equal treatment…..to an ET as described in the Armed Forces Act 1996, provided that the matter complained of itself occurred on or after 1st October 1997. Normally a case will only be heard by an ET after the internal redress procedure has been exhausted.”  At the pre hearing review the claimant contended that Mr Murdock had relied upon this advice when considering the correct time to lodge his originating complaint, which led him to believe that he could not lodge his claim with the tribunal until the conclusion of the internal complaints procedure.

(7)	 The Army Appeals Wing wrote to Mr Murdock 16 September 2002 and advised that the Part-time Workers Directive did not apply to him. He was informed that members of the Royal Irish Regiment HSPT personnel were regarded as casual workers rather than working on the same terms and conditions as their full time counterparts and so were not entitled to an army pension. Mr Murdock was asked to indicate by 27 September 2002 if he accepted this position in which case he should withdraw his redress of complaint otherwise he was invited to provide evidence as to why he believed that he was entitled to receive a pension. 

(8)	 Mr Murdock subsequently wrote within the deadline to state that he did not accept the army’s position that he was not entitled to a pension and holiday pay and that he intended to provide further information in the future to progress his redress of complaint.  Mr Murdock lodged an originating claim with the industrial tribunal on 11 November 2002 in which he claimed the right not to be treated less favourably than full-time employees in respect to his rights to a pension and holiday pay. His is one of a number of similar cases in which part time army personnel are claiming less favourable treatment by reason of their part time status.

(9)	On 9 December 2002 the Army Appeals Wing wrote to Mr Murdock advising him that his application under the redress of complaints procedure had been suspended but could be reactivated at any time.  However Mr Murdock was advised by letter of 5th February 2003 that his case had been referred to the Army Board so that it could be considered at the same time as the other complaints made by other part-time Royal Irish Regiment members. He was subsequently sent a copy of the brief prepared by the Army Appeals Wing for his comment before it was sent onto the Army Board.  

(10)	The Army Board has deferred making a decision in relation to the internal complaints of the part time Royal Irish Regiment Members until after the outcome of the cases before the industrial tribunal. Therefore Mr Murdock’s redress of complaint application is still live.

4.  The law

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 came into operation on 1 July 2000 and gives part-time workers the right in principle not to be treated less favourably than full-time workers of the same employer who work under the same type of employment contract.

Regulation 8 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 (referred to hereafter as the “Part Time Workers Regulations”) provides that:-

8(2)    	“ Subject to paragraph (3), an employment tribunal shall not consider a 			complaint under this regulation unless it is presented before the end of the 		period of three months (or, in a case to which regulation 13 applies, six 			months) beginning with the date of the less favourable treatment or detriment 		to which the complaint relates or, where an act or failure to act is part of a 			series of similar acts or failures comprising the less favourable treatment or 		detriment, the last of them.

8(3)     	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 exercising this discretion, the tribunal should consider the prejudice which each party would suffer as a result of granting or refusing the extension and to all the circumstances which include:-

1.	The length and reason for delay.
2.	The extent which the cogency of the evidence is likely to be affected by the delay.
3.	The extent to which the parties sued co-operated with any request for information.
4.	The promptness with which the claimant acted when he knew of the facts giving rise to the cause of action.
5.	Steps taken by the claimant to obtain appropriate legal advice when he knew of the possibility of taking action.

The time limit for presenting a complaint under Regulation 30 of the Working Time Regulations (Northern Ireland) 1998 (referred to hereinafter as the “Working Time Regulations”) is expressed in almost identical terms as the Part Time Workers Regulations. Except Regulation 30(2) specifies that if the claim is not presented within the specified time limit, the complaint may be considered if it is presented “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, or as the case may be six, months.” The tribunal must consider whether it was reasonably feasible for a claimant to have lodged proceedings within the specified time limit.
Furthermore, members of the Armed Forces must also make a complaint under the internal grievance procedure before lodging a complaint with the industrial tribunal. Regulation 13 of the Part Time Workers Regulations:

13(3)   	 “No complaint concerning the service of any person as a member of the 			armed forces may be presented to an employment tribunal under regulation 		[8] unless— 
		(a)     	that person has made a complaint in respect of the same matter to an 			officer under the service redress procedures, and
		(b)       that complaint has not been withdrawn.

13(5)    	 Where a complaint of the kind referred to in paragraph (3) is presented to an 		employment tribunal, the service redress procedures may continue after the 		complaint is presented.
13(6)     In this regulation, “the service redress procedures” means the 				procedures, 	excluding those which relate to the making of a report to Her 			Majesty, referred to in section 180 of the Army Act 1955….”

Regulation 37 of the Working Time Regulations is expressed in the same terms.	
	
5. Conclusions 

1)	The tribunal was satisfied that Mr Murdock should have presented his originating claim to the tribunal within six months of the date of his retirement on 17th December 2001 as his Mr Murdock’s potential entitlement to a pension and holiday pay ceased on that date.

2)	Therefore the tribunal had to decide whether the time for presenting the originating claim should be extended under the provisions of the Working Time Regulations and the Part Time Workers Regulations. The onus is on the claimant to convince the tribunal that it should exercise its discretion to extend the time limits for presenting the originating complaint. 

3)	It is the view of the tribunal that Mr Murdock appreciated the facts giving rise to his complaint to the industrial tribunal when he wrote to the respondent on 29 October 2001 and again on 3rd December 2001.  He raised his grievance because of his approaching date of retirement on 17 December 2001.  The tribunal concludes that he was aware that this was a crucial date as he would cease to accrue potential pension rights and holiday pay on that date. The tribunal considers that the fact that Mr Murdock raised his complaint with the respondent prior to the termination of his service, demonstrates that he (and presumably Mr Millar, who drafted the letter for Mr Murdock), were of the view that he had been “wronged” at that stage. The tribunal therefore cannot accept the argument that Mr Murdock only became aware that he had been wronged when he received the letter of 16th September 2002. Mr Murdock was fully aware when his service ended that he was not entitled to receive a pension and other benefits and that this issue had not been addressed to his satisfaction by the respondent at the time of the termination of his employment.

4)	Mr Murdock had access to the Regulations and had discussed the time limits contained therein, specifically with Mr Millar, prior to the date of his retirement. The tribunal is of the view that he knew or ought to have known of that the six month time limit ran from 17th December 2001. It was clear from Mr Millar’s evidence that he was aware that there was a six month time limit from the date of the less favourable treatment and the tribunal is satisfied on  a balance of probabilities that he would have informed Mr Murdock of this requirement. Mr Murdock chose to rely on the advices of Mr Millar with regard to his employment rights and not to seek any legal or other expert advice. In the view of the tribunal Mr Murdock did not take any steps to obtain appropriate legal advice and does not accept the reason advanced for his not having sought legal advice. The tribunal does not consider that the guidance notes issued by the respondent were misleading as the reference is to the timing of the hearing of a complaint by an employment tribunal and not the date for lodging proceedings with the tribunal. 

5)	The tribunal considered whether Mr Murdock’s health had any bearing on the late presentation of the claim. It took into account that the recuperative period was six to eight months after 7th January 2002 but noted that he was able to lodge his redress of complaint application form in March 2002.  Therefore the tribunal could not accept that the claimant’s surgery prevented him from lodging the originating claim within the six month time limit.

6)	In considering the likely prejudice to each of the parties the tribunal also took into consideration that Mr Murdock’s redress of complaint application is still live but held in abeyance by the respondent pending the ruling of industrial tribunal on the substantive issues in the lead cases. The tribunal took into account that in all likelihood the claimant would benefit in the event of any retrospective changes by the respondent to pension and holiday pay entitlement for those persons employed under HSPT terms and conditions. 

7)	The tribunal was therefore satisfied that the claimant had not discharged the onus upon her and that determines it was reasonably feasible for Mr Murdock to have lodged his complaint within the six month time limit and that it was not just and equitable in all the circumstances of the case to extend the time limit for lodging the complaint. The tribunal determines that it does not have jurisdiction to consider the complaint and dismisses the originating claim.

Chairman:

Date and place of hearing:	13 December 2006, Belfast

Date decision recorded in register and issued to parties: