THE INDUSTRIAL TRIBUNALS

CASE REF:  317/07

CLAIMANT:			Kevin Christopher Green

RESPONDENT:		Interpress Ltd

DECISION ON A PRE-HEARING REVIEW
It is the decision of the tribunal that the claim of the claimant was not presented within the specified time limit but that it is just and equitable in all the circumstances of the case for the claim to be considered despite that fact that it was out of time.

Constitution of Tribunal:
Chairman (sitting alone):		Ms Crooke

Appearances:
The claimant was represented by Mr G Kilpatrick of Thompsons McClure, Solicitors.
The respondent was represented by Ms L Toolan of Employers’ Engineering Federation.

SOURCES OF EVIDENCE
The tribunal heard evidence from the claimant Mr Green and his union representative Miss Claire Keane.  Additionally it had an agreed bundle of documentation before it.  

THE LEGAL ISSUE
As it was agreed by the parties that the claim was 25 days outside the specified time limit, it only fell to the tribunal to consider whether or not it was just and equitable in all the circumstances of the case for an industrial tribunal to consider the claim despite the fact that it is out of time.

THE RELEVANT LAW
THE EMPLOYMENT EQUALITY (AGE) REGULATIONS (NORTHERN IRELAND) 2006 REGULATION 48(4)

Case Law Considered

British Coal Corporation -v- Keeble and Others [1997] IRLR 336.

London Borough of Southwark -v- Afolabi [2003] EWCA Civ15 [2003] ICR 800.

Chohan -v- Derby Law Centre [2004] IRLR 685.

Virdi -v- The Commissioner of Police of Metropolis and Another [2007] IRLR.

Hawkins -v- Ball and Barclays Bank Plc.

FINDINGS OF FACT

 1.	The claimant applied for the position of print technician with the respondent on or about 3 October 2006.

 2.	The claimant at that time was a person who had been made redundant after working for 40 years for the Derry Journal.  He had over 40 years experience in the web off set printing of newspapers.

 3.	On or about 3 or 4 November 2006, the claimant was informed by a letter dated 2 November 2006 from the respondent that he had not been selected for interview.  

 4.	On or around 4 December 2006, the claimant discussed this decision with the respondent’s Personnel Manager and received the feedback that he had not been selected for interview because he did not have enough experience in printing full colour newspapers.

 5.	At that time the claimant accepted this and although disappointed, thought that perhaps the person appointed had better qualifications than his own.  At this stage he did not consider that he had been discriminated against in any way although he was disappointed.  The delay in the Personnel Manager for the respondent speaking to the claimant on foot of his letter of 27 November 2006 arose because the claimant was on holidays, only returning home on 3 December 2006.

 6.	On a date in December 2006 which the claimant could not remember he attended a party and was told that a Mr Poots had been appointed to the position for which he had applied and he was both younger and less experienced in newspaper printing.  Mr Poots came from a sheet fed background purely.

 7.	It was only on 12 January 2007 that the claimant learned of the existence of age discrimination legislation from a friend.

 8.	There was a divergence in the evidence between the version of events given by the claimant and the version given by his union official.  He said that he contacted her on 16 January 2007.  She said that contact was not made until between 29 and 31 January 2007.  On the balance of probabilities, the tribunal prefers the version of events given by the claimant.  The official’s evidence, though honestly given, was less likely to be correct as she admitted that not only had she just returned from a period of sickness absence, from the period of 8 January 2007 to 16 February 2007, she was rarely in her office but also her union offices had relocated from Navan to Merrion Square in Dublin.

 9.	The union official, Miss Claire Keane covers both the North and the South of Ireland, and had not received up-to-date training on age discrimination legislation in Northern Ireland and did not really have proper administrative support at that time.

10.	During the initial telephone calls with the claimant, Miss Keane did not have enough information to exactly establish when the claimant was not selected and a subsequent time line of events.

11.	Although the Graphical Print and Media Union remained as an intact section, it was still subject to AMICUS rules.  In particular requests for legal assistance had to be made formally through the Head Office, with proper details including the member’s name, address and number all to be provided.

12.	Miss Keane had some difficulty in obtaining these details as her records were in storage in the basement of Merrion Square, Dublin.  After some difficulty she finally spoke to the claimant by telephone to obtain the necessary details from him.  

13.	The application was faxed to AMICUS on 16 February 2007.

14.	While Miss Keane was unclear on dates and needed further information to be gathered by the claimant, the claimant thought that the matter was in the hands of his union and he did not need to take any further steps.

15.	On 22 February 2007 AMICUS authorised Mr Kilpatrick of Thompsons McClure to give legal advice to the claimant.  Mr Kilpatrick wrote to the claimant on 23 February 2007, met with him on 27 February 2007 and lodged the claim form with the tribunal on 28 February 2007.

CONCLUSIONS

16.	Regulation 48(1) of the Employment Equality (Age) Regulations (Northern Ireland) 
2006 provides as follows:-

		“An industrial tribunal shall not consider a complaint under Regulation 41 
(Jurisdiction of Industrial Tribunals) unless it is presented to the tribunal 
before the end of the period of three months beginning when the act 
complained of was done.

		If the act complained of is the delivery of a decision not to select the claimant 
for interview which was 3 November 2007, then if the claim form was only 
lodged on 28 February 2007, the application is 25 days out of time.  
However, under Regulation 48(4) “a court or tribunal may nevertheless 
consider any such complaint or claim which is out of time if, in all the 
circumstances of the case, it considers that it is just and equitable to do so””.

17.	In reaching its decision, the tribunal has had regard to the circumstances of the 
case and in particular to the guidance laid down in the case of British Coal 
Corporation -v- Keeble and Others [1997] IRLR 336 which states as follows:-

		“…	(a)	the length of and reasons for the delay;

(b)	the extent to which the cogency of the evidence is likely to be affected by the delay;

(c)	the extent to which the party sued had co-operated with any request for information;

(d)	the promptness with which the claimant acted once he or she knew of the facts given rise to the cause of action; and

(e)	the steps taken by the claimant to obtain professional advice once he or she knew of the possibility of taking action”.

18.	THE LENGTH OF AND REASONS FOR THE DELAY

The main reason for the delay in taking action was that it was not until 12 January 2007, that the claimant knew of the existence of a right of action on age discrimination grounds.  Given that it is likely that there was an advertising campaign at the time of the regulations coming into force and no doubt reports would have appeared in newspapers about this new legislation, was this reasonable?  It is important to remember that at the time in question (November and December 2006) this was extremely new law and it is therefore not surprising that the claimant should be unaware of its existence, especially as his reading of newspapers was confined to the sports pages.  Once he knew of its existence, he did take steps to contact the union to see if a claim could be made on his behalf on 16 January 2007.  The union at this point was in a state of some dislocation in Ireland.  Miss Keane had literally just returned from a period of sickness absence and was still restricted in what she could do.  She did not have proper administrative support, but only a temporary assistant who was new to the work and far from experienced.  Additionally the contents in the office in Navan had been packed up in boxes and at that time lay in the basement of the Merrion Square office.  Miss Keane even had to have the form for requesting legal advice faxed to her by her Head Office, as it had not yet been unpacked.  Miss Keane was also infrequently in the office in the working week.  We do not know why it was necessary for Miss Keane to obtain an age profile of the workers in the respondent during January 2007, but no doubt that is a matter that will become clear at the substantive hearing.  There was a further delay caused by the need to comply with AMICUS procedures to authorise the giving of legal advice.

The two causes of the delay were the claimant’s lack of knowledge concerning his right of action and the operational difficulties experienced by the union in January and February 2007.  In the event, the delay caused was 25 days which when set beside the case of London Borough of Southwark -v- Afolabi [2003] EWCA Civ15 which involved a nine year delay, could pale into significance.  However, the Afolabi case is very much one that turns on its own particular facts and should not been seen as a yardstick against which to measure the length of delays in all other cases concerning the legal questions posed for the tribunal in this case.

This is not a case in which the delay in presenting the claim was caused by incorrect advice by the solicitor involved, as he only had carriage of the case for a matter of days before the claim was lodged with the tribunal.  It is not even the case that the union gave incorrect advice to the claimant.  However, for the reasons set out, there was a less than speedy response to the claimant’s enquiry by the union and the tribunal does not consider that it would be just and equitable to lay the responsibility for this at the feet of the claimant.  In the cases of Virdi and Chohan tribunals have considered that it would be just and equitable to extend the time limit despite the fact that an action lay against the solicitors in both cases.  We were not advised whether the claimant would have any remedy against his own union, but even if he does, we consider that that of itself is not a reason to deny him the right to bring his claim against the respondent.  Miss Toolan argued that something must have raised the suspicions of the claimant to make him query the decision on 27 November 2006 and he was after all unemployed with time on his hands to look into the matter of his rights.  In this connection, it is important to note the employment history of the claimant.  He had worked for a substantial period of 40 years with the Derry Journal.  He had no real need to inform himself about his rights in the same way that a person who had a lesser period of service and service with various employers might have to do so.  In that context, it is unsurprising that the claimant’s mind did not automatically turn to the question of his rights, until a friend told him of the existence of age discrimination legislation.  Miss Toolan also suggested that the claimant should have researched his position on the internet.  While the claimant admitted to some ability to use the computer, he explained that he was far from being experienced.  Furthermore, if the claimant did not believe that he had any right at all, on the balance of probabilities it is more likely than not that he would have simply not seen any need to turn to the computer.

19.	THE EXTENT TO WHICH THE COGENCY OF THE EVIDENCE IS LIKELY TO BE AFFECTED BY THE DELAY

We do not consider that this is a case in which the cogency of the evidence will be affected by the delay.  The overall delay was a matter of 25 days.  Effectively this means that the claimant lodged his proceeding just under four months after being informed by the respondent that he was not selected for interview.  Miss Toolan asserted that the respondent did not take this matter lightly.  It is noted that the respondent was able to provide an extremely detailed response to the claim.  That in itself would be a good foundation for building its case.  The respondent will still presumably have documentation available to meet this claim.  

20.	THE EXTENT TO WHICH THE PARTIES SUED HAD CO-OPERATED WITH ANY REQUESTS FOR INFORMATION

Neither side made any submissions under this heading of the guidance.

21.	THE PROMPTNESS WITH WHICH THE CLAIMANT ACTED ONCE HE OR SHE KNEW OF THE FACTS GIVING RISE TO THE CAUSE OF ACTION

We accept that the claimant acted promptly once he knew of the existence of his rights.  His friend told him of the existence of age discrimination law on 12 January 2007 and he contacted his union on 16 January 2007.  Thereafter, he considered that the union would take care of the issue for him.  Any person who is a member of a union would be entitled to consider that once he had referred the matter to the union, the union would look after it and act in his best interests.

22.	STEPS TAKEN BY THE CLAIMANT TO OBTAIN APPROPRIATE PROFESSIONAL ADVICE ONCE HE OR SHE KNEW OF THE POSSIBILITY OF TAKING ACTION

Once again, we find that the claimant took appropriate professional advice once he knew of the possibility of taking action.  As previously stated, he considered the matter was being looked after by the union and that the union would act in his best interests.  There was therefore no reason for him to go elsewhere such as to a Citizens’ Advice Bureau or to a solicitor, especially as the claimant did not appreciate that there was a difficulty with the time limit.

We also considered the issue of the prejudice to both parties.

23.	THE CLAIMANT

The claimant would suffer prejudice if the tribunal did not exercise its discretion under Regulation 48(4).  The claimant, irrespective of any claim he may or may not have against his union, would be denied access to justice.  This would be for the reason that he did not issue proceedings until he knew he had a cause of action, and once he knew he had a cause of action he took the appropriate steps of referring the matter to the union.  He did not delay unduly in so doing.  It is not the sort of case where recollections will have dimmed with the passing of years.  The salient events took place in late 2006.  The necessary papers would still be in the hands of the respondent.

24.	THE RESPONDENT

Miss Toolan argued that the respondent would suffer significant prejudice.  She said that just because the respondent had been able to lay out a very detailed submission in response to the claim making available information that for example dates of birth had been removed from the applications in accordance with best practice guidance, did not mean that there would be no further prejudice or work to be carried out by the respondent.  The bulk of the case was yet to be considered and prepared.  It is the view of the tribunal that this is coming perilously close to saying that the very fact of being sued is prejudicial to the respondent and therefore time should not be extended so that the respondent could avoid being sued.  If this had been the intention of the legislature, the tribunal is sure that Regulation 48(4) would have been missing from the Employment of Equality (Age) Regulations (Northern Ireland) 2006.  The tribunal does not accept that significant prejudice is caused by the respondent by the mere fact of it being sued.

25.	Given the recent introduction of this right, the fact that the claimant sought to 
exercise his rights well within the three month period and the relatively short period of delay, the tribunal exercises its discretion to conclude that it is just and equitable in all the circumstances of the case for an industrial tribunal to consider the claim despite the fact that it is out of time.

Chairman:

Date and place of hearing:	20 September 2007, Belfast

Date decision recorded in register and issued to parties: