THE INDUSTRIAL TRIBUNALS 

CASE REF:	342/06

CLAIMANT:		Kathleen Cash

RESPONDENT:		Ulster Community & Hospitals Trust

DECISION ON A PRE HEARING REVIEW

The first preliminary issue is answered in the negative and the Tribunal dismisses the claimant’s claim for unfair dismissal.  The second preliminary issue is answered in the affirmative.  It is unnecessary to consider the third preliminary issue.  The claimant’s claim for disability discrimination may proceed to hearing.

Constitution of Tribunal:

Chairman:		Mr B Greene (sitting alone)

Appearances:

The claimant was represented by Ms S Bradley, of counsel, instructed by the Equality Commission of Northern Ireland.

The respondent was represented by Mr F O’Reilly, of counsel, instructed by the Director of Legal Services.

Sources of Evidence

1.	The Tribunal heard evidence from the claimant.  The respondent did not adduce any evidence.  The Tribunal also had regard to the originating claim, the response, a bundle of agree documents of one hundred and sixteen pages and a letter of 23 January 2006 from the respondent to the claimant. 

The Claim and Defence

2.	The claimant claims unfair dismissal and disability discrimination.  The respondent resists the claimant’s claims.  It further asserted that the claimant’s claims were outside the requisite time limits.

The Issues

3.	This matter was listed to deal with the following issues;-

(a)	Whether the Tribunal has jurisdiction to entertain the claimant’s complaint in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting his complaint.

(b)	Was the claim of unlawful discrimination for a reason related to the claimant’s disability presented within the specified time limit?

(c)	If not, is it just and equitable to consider this claim despite the fact that it is out of time?

Findings of Fact

4.	(a)	The respondent employed the claimant from 13 May 1991 to November 2005 as a grade B nursing auxiliary.

(b)	In November 2003 the claimant was diagnosed with bowel cancer.  As a result of the illness and its treatment the claimant was off work from November 2003 and did not return to work.

(c)	On 8 November 2005 the respondent informed the claimant that her contract of employment was being terminated and there were no other positions available to her.

(d)	By letter of the 10 November 2005 the respondent notified the claimant that her employment was terminated from 10 November 2005 as she was medically unfit to return to work.  It further informed the claimant of her right of appeal against the decision.  The claimant elected not to appeal.

(e)	Around the 17 November 2005 the claimant saw an advertisement for staff for G.P. out of hours service, full-time and part-time.  The claimant had inquired about this type of position for herself prior to her dismissal and was informed no positions were available.

(f)	The claimant contacted the Equality Commission in connection with her complaint of discrimination.  The Equality Commission wrote to the claimant on 6 January 2006.  The latter advised her of the requirement to attempt to resolve the dispute before issuing legal proceedings and of the three months time limit for lodging a complaint.  It also advised her that her complaint might give rise to other legal issues or redress and it suggested she may consider seeking legal advice from the Labour Relations Agency.  

(g)	The claimant wrote a letter of complaint to the respondent, which was received on 12 January 2006, under the Statutory Dispute Resolution Procedures claiming unlawful discrimination on the ground of her disability contrary to the Disability Discrimination Act 1995. 

(h)	Subsequently the claimant contacted the Labour Relations Agency.

(i)	On 9 February 2006 the claimant contacted the Equality Commission on several occasions by phone.  She advised the complaints officer that she had been in touch with the Labour Relations Agency which had advised her that the three months time limit was up on 10 February 2006, that the time limit could not be extended and she could get an application form at the jobcentre. 

The complaints officer, on the basis of what the claimant related of her conversation with an officer from the LRA, advised her that she believed the advice given to the claimant regarding time limits was wrong and that she should contact a different adviser or the Office of Industrial Tribunals and the Fair Employment Tribunal (OITFET) and gave her the number of OITFET.

The claimant also contacted OITFET where she was advised of a three months extension for lodging a claim if she was using the statutory dispute resolution procedure.  She was advised her discrimination claim was in time but she could not remember if she received advice about her unfair dismissal claim.

(j)	The three months period for lodging her disability discrimination and unfair dismissal claims expired on 10 February 2006.

(k)	The claimant lodged an application for unfair dismissal and disability discrimination with OITFET on 20 March 2006.

(l)	The claimant had set herself the goal of returning to work as part of her recovery from her serious illness.  When that prospect was removed from her she found it devastating.

(m)	The claimant relies on her emotional and psychological weakness as the reason for not submitting her claims within the requisite three months.  She was attending her G.P. and was receiving counselling from the Marie Curie Centre weekly from the end of November 2005. 

(n)	The claimant also stated that her medical condition prevented her from complying with the time limits.

The Law

5.	(a)	A Tribunal cannot consider a complaint of unfair dismissal unless it is brought within three months of the effective date of termination (Article 145(2)(a) The Employment Rights (Northern Ireland) Order 1996.

(b)	Where a complaint is out of time the Tribunal may consider the complaint where it is satisfied that it was not reasonably practicable to present the complaint within the three months and where the complaint was brought within a further reasonable period (Article 145(2)(b) The Employment Rights (Northern Ireland) Order 1996).

(c)	Where a complaint of unfair dismissal is made after the three month period and at that time the complainant has reasonable grounds for believing that the applicable statutory dismissal procedure was being followed in respect of matters that consisted of or included the substance of the complaint the three month period for lodging a claim is extended for a period of three months (Regulation 15(1)(a), (2) Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.

(d)	A Tribunal cannot consider a complaint of discrimination on the grounds of disability unless it is brought within three months of the date on which the act complained of was done (Schedule 3, 3(1) Disability Discrimination Act 1995).

(e)	Where a complaint of discrimination is out of time the Tribunal may consider the complaint, in all the circumstances of the case, if it is just and equitable to do so (Schedule 3, 3(2) Disability Discrimination Act 1995.

(f)	Where a complaint of disability discrimination is made after the three month period and the complainant has complied with the applicable statutory grievance procedure within the three month period the three month period for lodging a claim is extended for a period of three months (Regulation 15(1)(b), (3)(b) Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.

Application of the Law and Findings of Fact to the Issues

6.	(a)	In this claim the operative date from which the time limits run is the 10 November 2005.

(b)	The claimant’s claim is dated 20 March 2006, over seven weeks outside the requisite three months for bringing a claim.

(c)	At the time of lodging the claim there was not a disciplinary procedure which was being followed.  The claimant had elected not to appeal the decision to dismiss.  Therefore in relation to the unfair dismissal claim the claimant cannot avail of the extension of time for lodging a complaint by virtue of Regulation 15(I)(a) and (2) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.

(d)	In relation to the unfair dismissal claim the Tribunal is not persuaded that it was not reasonably practicable for her to lodge a complaint within the requisite three months.  In so concluding the Tribunal took into account the following matters;-

(i)	There was not any medical evidence before the Tribunal to show that from November 2005 to 20 March 2006 the claimant was not able to submit a claim.

(ii)	On 12 January 2006 the claimant was able to draft and write a letter to the respondent seeking to avail of the Dispute Resolution procedures.

(iii)	The claimant was able to contact and discuss her discrimination claim with an officer in the Equality Commission on 6 January and 9 February 2006.
 
(iv)	By letter of 6 January 2006 the claimant was advised by the Equality Commission of the three month time limit for lodging her discrimination claim and made aware of the Labour Relations Agency as a source of advice for other non-discrimination claims.

(v)	While the Tribunal has no doubt that the claimant was devastated by her illness and its after-effects and can easily accept that that did weaken her ability to pursue her claim with vigour it is not persuaded that she was in such a weakened state as not to be able to lodge a claim for unfair dismissal.

(e)	The claimant’s claim for unfair dismissal was not brought within the specified time limit and therefore the first preliminary issue is answered in the negative.

(f)	In relation to the claimant’s claim for disability discrimination her claim is within the requisite time as extended.  In so concluding the Tribunal took into account the following matters;-

(i)	The three month period for lodging a claim of disability discrimination expired on 9 February 2006.

(ii)	The claim was lodged on 20 March 2006.

(iii)	The claimant lodged a grievance with the respondent on 11 January 2006.

(iv)	The extended time for lodging a claim is 10 May 2006 and consequently the claimant’s claim for disability discrimination is within the requisite time limit as extended.

(g)	The second preliminary issue is also answered in the affirmative.

(h)	It is therefore unnecessary to consider the third preliminary issue.

(i)	The Tribunal directs that the claimant’s claim for disability discrimination can proceed to hearing.

(j)	The claimant’s claim for unfair dismissal is dismissed as the Tribunal does not have jurisdiction to entertain the claim.

Chairman:

Date and place of hearing:

Date decision recorded in register and issued to parties: