Corey v St Colmcille’s PrimarySchool & Ors [2008] NIIT 127_07IT (08 February 2008)

THE INDUSTRIAL TRIBUNALS

CASE REF:  1271/07

CLAIMANT:			Liam Corey

RESPONDENTS:	1.  Interim Board of Governors of St Colmcille’s Primary
School
2.  St Brigid’s Primary School
3.  Council for Catholic Maintained Schools

DECISION ON A PRE-HARING REVIEW
The decision of the tribunal is that the claimant’s claim was not presented within the time limits provided for in Regulation 48(1) and (2) of the Employment Equality (Age) Regulations (Northern Ireland) 2006, (hereinafter called the Age Regulations). The tribunal considers that it would not be just and equitable for a tribunal to consider the relevant complaint, despite the fact that it is brought outside the time limit laid down. Consequently the claimant’s claim to the tribunal is dismissed as being commenced outside the said time limit.  

Constitution of Tribunal:
Chairman (Sitting Alone):	Mr Patrick Cross

Appearances:
The claimant was represented by Mr N Phillips, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.
The respondents were represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

THE ISSUES
 1.	The claimant was the principal of St Louis’ Primary School in Ballymena, one of four primary schools, which during 2006, were to be merged into two new primary schools, due to open in September 2007.  The claimant applied for the post of principal of St Colmcille’s Primary School, one of the two new proposed schools.  Various interviews were held with the claimant, who was ultimately told that he was not being appointed to the post.  After appealing the process of appointment of principal, the claimant attended an appeal hearing on 28 February 2007.  The third named respondents wrote to the claimant on 5 March informing him that his appeal was not upheld and consequently he would not be appointed principal of St Colmcille’s school.

 2.	The claimant submitted his application to the Office of the Industrial Tribunals and Fair Employment Tribunal on 7 June 2007.  The claimant received the letter of 5 March from the third named respondent on 6 March and consequently the notification to the tribunal of the claim would have been made outside the three month time limit.

 3.	However, on 6 March 2007 the claimant’s union INTO wrote to the third named respondent making further complaints concerning the process of appointing the new principals and setting out further grounds of appeal.  The appointment of the successful applicants for the two posts of principal was confirmed on 8 March 2007. The claimant then wrote to the Chair of the Interim Board of Governors of the two new schools on 5 April 2007,  stating that he was initiating the statutory grievance procedure in accordance with the Employment Rights (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland)  2004.

 4.	The question for the tribunal is whether the claimant was required to initiate the statutory grievance procedure prior to commencing his claim in the industrial tribunal.  If so, he would be entitled to the extension of time limits laid down in Regulation 15 of the 2004 Dispute Resolution Regulations.  If these Regulations do not apply to this particular claim then the claimant would not get the extension of time and his claim would be out of time, unless the tribunal extends the time limit on the ground that it is just and equitable to do so.

FINDINGS OF FACT

 5.	The claimant attended interviews on 22 and 24 January applying for the positions of principal at both the new primary schools.  He was notified at the end of January that he had been unsuccessful in these applications.

 6.	The claimant then appealed the process of interview and the appeal process was completed when the claimant was notified on 5 March that the original decision not to appoint him was being upheld.  The claimant received his letter on 6 March consequently this is the day on which he knew that his application for the post had failed.

 7.	When the claimant was unable to secure one of the two new posts he wrote on 5 April 2007 to the Chairman to the Interim Board of Governors of St Colmcille’s and St Brigid’s primary schools initiating the first stage of the statutory grievance procedure.

 8.	The Chair of the Board of Governors subsequently wrote on 23 April 2007 to the claimant stating that he was unable to initiate the first stage of the statutory grievance procedure as the Interim Board of Governors was not the employer of the claimant.  Consequently he suggested that the claimant initiated a grievance procedure in writing to the Chairperson of the Board of Governors of the school which employed the claimant.  Certain correspondence then continued between the third named respondent and the claimant’s union terminating with a letter of 8 May 2007 in which the third named respondent reiterated the fact that it was the Interim Board of Governors that was the body charged with making the appointment of principals to the new schools. As they were not the claimant’s employer no further statutory grievance existed.  The letter went on to say that the claimant had availed of the appeals process with relation to his non-appointment to the posts in the two schools and therefore “he has exhausted all internal mechanisms”.

 9.	The claimant then commenced his application to the tribunal on 7 June 2007.

THE LAW

10.	Article 48(1) of the Equality (Age) Regulations states,  “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”.  Clearly in this case the claimant’s claim was not presented within three months of finding out that he was not to be appointed to one of the new posts.

11.	This situation can however be rectified if this dispute falls within the statutory Dispute Resolution procedures laid down by the Employment (Northern Ireland) Order 2003.  Article 19 and Schedule 3 of this Order makes it clear that the Grievance Resolution procedures only apply to disputes between employers and employees. They do not affect claims of discrimination by a potential employee arising out of the potential employer’s selection procedures. The fact that Article 19 is referable only to employees is reinforced by sub clause (8) of the Article, which gives the Department for Employment and Learning authority to make provision for the Article to extend to “any individual of a description specified in the order who would not otherwise be an employee”.

12.	This is a case of a prospective employee being allegedly discriminated against by a prospective  employer and therefore it does not fall within the ambit of the statutory Grievance Resolution procedures and consequently the claimant cannot avail of the additional time allowed to bring his tribunal case to allow for the statutory procedures to be completed.

13.	As it is not possible for the claimant to have the time limit extended, because his claim is against a potential employer, then his claim will be out of time and no additional time will be allowed over and above the initial three months referred to above.  The only way that the claimant can then have his claim accepted by the tribunal is if the tribunal considers that it is just and equitable that his claim be so accepted.  This power of the tribunal is set out in Article 48(4) of the Equality (Age) Regulations 2006 “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”.

DECISION

14.	As already mentioned the claimant’s claim is brought outside the three months time limit laid down by the Equality (Age) Regulations and because  his claim lies against the Interim Board of Governors of St Colmcille’s and St Brigid’s primary schools, the first and second respondents, he is not taking proceedings against his employers and therefore cannot benefit from the extension of time allowed for under Regulation 48(2) of the said Regulations in conjunction with the Employment (Northern Ireland) Order 2003.  

15.	Consequently the only way that the claimant can be allowed to continue with his claim is if this tribunal considers that it is just and equitable that he be allowed so to do.

16.	In reaching the decision that it is not just and equitable to allow the claimant to proceed with his claim the tribunal considered the following factors.

17.	The claimant received a letter on 23 April 2007 from Mr McCann the Chair of the Interim Board of Governors, to whom he had suggested the statutory grievance procedure. The Interim Board was unable to deal with this as it was not his employer. The Interim Board pointed out that any grievance should be put to the Chairperson of his own Board of Governors.  The claimant’s union appeared to have misinterpreted this, as in their letter of 30 April in response to Mr McCann’s letter they say “it is however the contention of Mr Corey and INTO that the body who were charged with making the appointment were the Interim Board of Governors, therefore the appropriate body to hear the statutory grievance is the Interim Board, which had authority to make the appointment and to whom Mr Corey would allege caused him to suffer a detriment because of his age”.  It would appear that Mr Carlin the official of the INTO was under the impression that the statutory procedures did apply to situations of discrimination which were not between employer and employee.  This is clearly not the case and it is because of this misunderstanding that the time limit has been missed.  This is most unfortunate as Mr Carlin states in that letter of 30 April that “as such it may be necessary for Mr Corey to lodge protective proceedings in the industrial tribunals in order to protect his statutory rights while the investigation is ongoing”.  If this had been done immediately, the time limit, which did not expire until 4 June would have been complied with.  

18.	It would appear that Mr Corey’s advisers knew that protective proceedings could be initiated but were under the false impression that they had to wait for the 28 days to expire from the date on which Mr Corey initiated his unnecessary statutory grievance.  This letter of grievance had been written on 10 April 2007 and so the 28 days would have expired in early May.  This 28 days is irrelevant as the statutory procedure did not apply, but had the claimant made his claim immediately after 10 May, he would still have been within the original three months from the date upon which he heard of the fact that he was not to be appointed to the post that he had applied for.

19.	The tribunal appreciate that the regulations surrounding the statutory grievance process are complicated but it is quite clear that these regulations only apply to employer/ employee relationships and not to a relationship where a person applies for a post.  The claimant had the assistance of his trade union representatives and in these circumstances the tribunal cannot consider it just and equitable that the claim be allowed to proceed.  The tribunal was referred to the decision in the English Court of Appeal in Robertson v Bexley Community Centre [2003] IRLR 434. In the head note to that decision it is stated :-

“Time limits are exercised strictly in employment cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds, there is no presumption that they should do so unless they can justify failure to exercise the discretion. On the contrary, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. The exercise of the discretion is thus the exception rather than the rule.”

20.	In this case, the tribunal, although sympathetic toward the Trade Union officials who had to interpret this complex legislation concerning time limits in the era of the statutory Grievance Regulations, find against the claimant, as it is clear that the Grievance Regulations did not apply and the claimant if properly advised had adequate time to commence his claim within the time limit. 

Chairman:

Date and place of hearing:	14 December 2007, Belfast.

Date decision recorded in register and issued to parties: