THE INDUSTRIAL TRIBUNALS

CASE REF:    1732/10

CLAIMANT:	Claire Boyle

RESPONDENT:	Superdrug Stores Plc

DECISION ON A PRE-HEARING REVIEW

An industrial tribunal has no jurisdiction to entertain the claimant’s claim of unfair dismissal because the claim was not presented within the applicable time-limit.  Accordingly, that claim is dismissed.

Constitution of Tribunal:

Chairman (Sitting alone):	Mr P Buggy

Members:	

Appearances:

The claimant was represented by Mr J Kennedy, Barrister-at-Law, instructed by John Fahy and Company Solicitors.

The respondent was represented by Ms S Bryson Solicitor, of Carson McDowell Solicitors 

REASONS

1.	The claimant was employed by the respondent at its store in Strabane, for several years.  The respondent dismissed her at the end of March 2010, allegedly for serious misconduct.  The claimant denies that she was guilty of any such misconduct.

2.	The purpose of this Pre-Hearing Review was to determine whether an industrial tribunal has jurisdiction to entertain the claimant’s claim, in view of the time-limit requirements which are set out in Article 145 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).

3.	I have regretfully determined that issue against the claimant.  I am satisfied that an industrial tribunal has no jurisdiction to entertain her claim, because she has not complied with the relevant time-limit requirements.

Article 145

4.	In the circumstances of this case, the applicable time-limits are to be found only in Article 145 of the 1996 Order.  Article 145(2) is in the following terms:-

	“(2)	Subject to paragraph (3), an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal:-

		(a)	Before the end of the period of three months beginning with the effective date of termination, or

		(b)	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 months.”

5.	Accordingly, the scheme of Article 145 can be summarised as follows: First, there is a primary time-limit of three months.  Secondly, there is a secondary
time-limit (as provided for in Article 145(2)(b) of the Order).  However, that secondary time-limit is available only if I am satisfied, on the balance of probabilities, that it was not reasonably practicable for the complaint to be presented within the primary time-limit.

6.	The primary time-limit begins with the effective date of termination.  The parties are agreed that the claimant did not present the claim within that primary time-limit.  They are agreed that she presented it a few days after that time-limit
had expired.

7.	Accordingly, the central issue in this case was whether or not I was satisfied that it was not reasonably practicable for the complaint to be presented within the primary time-limit.  I was not so satisfied, against the following background and for the following reasons.

The facts, the law and my conclusions

8.	The claimant gave oral testimony on her own behalf.  I also had available a bundle of documents.  I also saw a letter from the claimant’s local GP group surgery.

9.	I am satisfied that, throughout the primary time-limit period, the claimant was suffering from a stress-related illness, for which she was taking medication.

10.	The general thrust of the letter from the surgery (which was signed by Dr C Mullan  is that, in Dr Mullan’s view, the claimant’s delay in presenting these proceedings was “due to her stress levels”.  However, I note that Dr Mullan did not himself treat, or meet, or attend, the claimant at any time during the primary time-limit.

11.	Instead, she was frequently seen by another GP in the surgery, a Dr Robinson.  On many occasions, during the primary time-limit, he urged her to see a solicitor about her claim so he must have felt that she was fit to consult a solicitor during that period.

12.	Furthermore, on several occasions during the primary time-limit, the claimant saw, and gave instructions to, a CAB advisor, who also urged her to contact a solicitor.  However, she did not do so.

13.	On the basis of the claimant’s oral testimony, I am satisfied that her omission to consult a solicitor, at any time during the primary time-limit, was substantially affected by her embarrassment about the whole situation (as distinct from any effects of her illness).

14.	The claimant failed to present her claim within the primary time-limit because she was unaware of the fact that that the time-limit expired three months after the effective date of termination.  She would have known that if she had promptly consulted a solicitor.

15.	Ignorance of the time-limits does not have the effect of making the presentation of a claim not reasonably practicable, unless that ignorance was ignorance on reasonable grounds.

16.	In my view, it was reasonably feasible for the claimant to have sought and obtained the advice of a solicitor at some time prior to the expiry of the primary time-limit.  Accordingly, although she did not know the length of the relevant primary limitation period until after it had expired, her ignorance on that matter did not constitute ignorance on reasonable grounds.  The feasibility of seeking prompt legal advice is fatal to the claimant’s arguments in respect of the time-limit issue, although Mr Kennedy clearly and concisely made all the arguments, in favour of an extension of the time-limit, which were open to the claimant.

17.	I have arrived at my determination in this case with regret.  The position of the respondent is that the claimant was sacked for serious misconduct.  The position of the claimant is that she was not guilty of any serious misconduct.  Because of the outcome of these proceedings, the claimant and the respondent will not be able to resolve that dispute in the course of industrial tribunal proceedings.  The respondent’s ability to defend these proceedings would not have been adversely affected in any significant respect by the circumstance that the claimant commenced these proceedings some few days after the expiry of the primary 
time-limit.  However, the law in relation to this matter is quite clear.  In the circumstances of this case, I have no power to extend the primary time-limit; I have no such power, because I am not satisfied that it was not reasonably practicable for the claimant to present her claim prior to the end of the primary time-limit.

Chairman:
 
Date and place of hearing:  30 September 2010, Belfast.
       
Date decision recorded in register and issued to parties: