THE INDUSTRIAL TRIBUNALS

CASE REFS:	157/10
464/10

CLAIMANT:			David Leslie Cuckson

RESPONDENT:		Northern Ireland Housing Executive

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant’s claim of unfair dismissal is dismissed as the tribunal has no jurisdiction to consider the claim.

Constitution of Tribunal:
Chairman (sitting alone):	Mr S A Crothers

Appearances:
The claimant was present and represented himself.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Head of Legal Services of Northern Ireland Housing Executive.

Issues

1.	The issues before the tribunal were as follows:

(1)	In relation to case reference number 464/10, whether an Order should be made requiring the claimant to pay a deposit of an amount not exceeding £500 as a condition of being permitted to take part in the proceedings.  The claimant informed the tribunal during the hearing, that he had signed a withdrawal form in relation to this claim, under the auspices of the Labour Relations Agency.

(2)	The remaining issue for the tribunal was therefore in relation to case reference 157/10 as to whether the tribunal has jurisdiction to entertain the claimant’s claim in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) regarding the time-limit for presenting his claim.

Sources of evidence

2.	The tribunal heard evidence from the claimant and referred to any relevant documentation.  

The Facts

3.	Having considered the evidence insofar as same was relevant to the issues before it, the tribunal made the following findings of fact:-

(1)	The effective date of termination of the claimant’s employment with the respondent was 26 June 2009.  The claimant appealed the respondent’s dismissal decision.  An appeal was to be heard on 6 October 2009 when the claimant was represented by Mr Mills of the Transport and General Workers’ Union (‘The Union’).  However the appeal was adjourned until 26 October 2009.  Shortly before that date the claimant’s uncle died and the appeal hearing was further postponed until 9 November 2009.  At that stage the claimant was advised by his trade union representative that there was nothing he could do, that he was wasting his time, and that the tribunal was his “best bet”.

(2)	The respondent conceded that in light of the ongoing statutory procedure until 9 November 2009, the time-limit according to the respondent’s contention, was extended under the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the Regulations”) until 26 December 2009.  The claimant presented his claim to the tribunal on 14 January 2010.

(3)	The tribunal was satisfied, on the evidence, that the claimant was aware from at least July 2009 of his right to present his case to an industrial tribunal.  Furthermore he had been a member of the Union for a period of some three years and had union representation during the appeal process, and therefore access to advice.  Furthermore, the claimant had been made aware of his right to present a claim to a tribunal via the Department of Health and Social Services from in or about July 2009.  He had also received advice from the Citizens Advice Bureau, although the Tribunal could not make a finding on the evidence as to how far in advance of the presentation of his claim to the tribunal, such advice had been obtained.  However, the tribunal was satisfied that before the expiration of the extended time-period under Regulation 15 of the Regulations, the claimant had approached a solicitor in Ballymena and had discussed some aspects of his case including when he had been dismissed and when the appeal process had finished.  He was also advised that there were strict time-limits for presenting a claim to a tribunal.  The tribunal is further satisfied that the claimant exaggerated his evidence in terms of not knowing what to do in order to present a claim to the tribunal.  There was no evidence of any real impediment preventing him from so doing within the extended time-limit.  The claimant had also been made aware, through a friend, whom he had spoken to about his case in the summer of 2009, of the pro-bono unit of the Bar Council.  However there was insufficient evidence before the tribunal to satisfy it as to precisely when he had approached the pro-bono unit.

The Law

4.	 (i)	The provisions in relation to time-limits for making a complaint to an industrial 	tribunal are set out in Article 145 of the Order.  

(ii)	The provisions for extending the normal time-limit of three months from the effective date of termination are contained in Regulation 15 of the Regulations which provide that where an employee presents a complaint to the tribunal after the expiry of the normal time-limit for presenting the complaint but had reasonable grounds for believing, when that time-limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise was being followed in respect of matters that consisted of or included the substance of the tribunal complaint, the normal time-limit for presenting the complaint is extended for a period of three months beginning with the day after the day in which it would have otherwise expired.

(iii)	The tribunal also considered the Employment Appeal tribunal decision in the case of Beasley-v-National Grid Electricity Transmission (UKEAT/0626/06/DM), and the England and Wales Court of Appeal decision also in Beasley-v-National Grid (2008) EWCA Civ742 (“Beasley”).

(iv)	The tribunal considered Harvey on Industrial Relations and Employment Law (“Harvey”), at Division T Paragraph 186ff.  At Paragraph 208 Harvey states as follows:-

	“If an employee is reasonably ignorant of the right to claim, it will inevitably follow that he will be unaware either of the correct mode of making a claim or the time within which it should be made.  But if he knows in general about the availability of the remedy, he may still be ignorant of how and when to pursue it.  In these circumstances, as Brandon LJ noted in the Walls’ Meat case, it may be difficult for him to satisfy a tribunal that he behaved reasonably in not making suitable enquiries about these matters.   Shaw LJ in the same case commented that ‘mere ignorance’ of the time limit will not of itself amount to reasonable impracticability, save perhaps where the employee does not discover the existence of his right until a short time before the expiry of the time limit.  Waller LJ took a similar view in Riley v Tesco Stores [1980] 
ICR 323 at 335.”

Submissions

5.	The tribunal heard submissions from the respondent’s Counsel, Mr B Mulqueen.  He urged the tribunal to find, on the evidence, that the claimant’s claims should be dismissed as being out-of-time.  He referred to the Employment Appeal Tribunal case of Beasley to substantiate his submissions and in particular at Paragraph 16  of Mr Justice Silber’s judgement which states as follows:-

“It follows that critical factors in determining whether it was “reasonably practicable” for a claimant to bring his claim for unfair dismissal within the prescribed three month period are (a) the state of the claimant’s knowledge relating to the right to make a claim for unfair dismissal and the need to bring this claim for unfair dismissal with three months of the effective date of his dismissal; (b) the steps taken by the claimant to ensure that he did bring the claim within that period; and (c) any impediments which prevented the claimant from bringing this claim within this period”.  

The claimant reiterated that he did not know what he was doing, that he was on own and that he had no-one to talk to in order to present a claim to the tribunal.

Conclusions

6.	Having considered the evidence together with the submissions and applied the principles of law to the findings of fact, the tribunal concludes that, applying Regulation 15 of the Regulations the normal time-limit expired on the 26 September 2009.  The extended period of three months began on the 27 September 2009 and expired on the 27 December 2009 and not 26 December 2009 as contended by the respondent.  The tribunal is satisfied that it was reasonably practicable for the claimant to have presented his claim before the 27 December 2009.  He did not do so until the 14 January 2010.  His claim is out-of-time and is therefore dismissed.

Chairman:

Date and place of hearing:	21 May 2010, Belfast	

Date decision recorded in register and issued to parties: