THE INDUSTRIAL TRIBUNALS

CASE REF:  6947/09

Claimant: 		Fleming Keery

Respondent: 	South Eastern Health and Social Services Trust

DECISION ON A PRE HEARING REVIEW

The decision of the tribunal is as follows:-
The claim of unlawful discrimination on the grounds of age was not presented within the time-limit provided for in Regulation 48(1) of the Employment Equality (Age) Regulations (Northern Ireland) 2006 ("the 2006 Regulations"). Nevertheless, it is just and equitable within the meaning of Article 48(4) of the 2006 Regulations for the Tribunal to consider the claim.

Constitution of the Tribunal

Chairman (sitting alone):  	Ms F Oliver

Appearances:

The claimant was represented by Mr Henry, Barrister-at-Law, instructed by Murlands Solicitors.

The Respondent was represented by Ms Finnegan Barrister-at-Law, instructed by the Central Services Agency.

Sources of Evidence

1.	The tribunal heard evidence from the claimant and from Ms McCreanor on behalf of the respondent.  The tribunal also received an agreed bundle of correspondence.

The Issue

2.	Whether in all the circumstances of the case, the tribunal considers it just and equitable to consider the complaint, notwithstanding that it is out of time.
The Relevant Statutory Provisions

3.	The relevant statutory provisions are contained within the 2006 Regulations which state as follows:

Period within which proceedings to be brought
 
48 (1) 	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………

(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.

Analysis of the Evidence

4.	Both witnesses gave their evidence in an open and honest manner.  The tribunal found them to be credible witnesses.  There was very little conflict in the factual evidence provided.  

Findings of Fact

5.	(a)	The claimant applied to the respondent for the post of Maintenance Supervisor Band 5 (the post).  He attended for interview on 7 April 2009 and on 17 April 2009 he received a letter informing him that he had been unsuccessful.

	(b)	The claimant was unhappy with the position and he immediately rang the respondent on 17 April 2009 to seek clarification.  He was advised to put any concerns in writing.

(c)	The claimant wrote to the respondent on 17 April 2009 asking for answers to questions he had arising from the interview.  The thrust of the claimant’s letter was that he felt he might have been rejected because he was over qualified for the job and he wanted this clarified.

(d)	The respondent sent a holding letter of 8 May 2009 indicating that the matter had been passed to Mrs McCreanor for her consideration and that she would be in touch.

(e)	On 11 June, Ms McCreanor sent a further holding letter to the respondent indicating that she would be in touch when she had investigated the matter fully.

(f)	The claimant phoned the respondent on at least two occasions before receipt of the letter of 9 July 2009 enquiring as to the reason for the delay in responding to his letter of 17 April 2009.  He was told that Ms McCreanor was very busy.

(g)	On 9 July 2009 Ms McCreanor wrote to the claimant indicating that she had investigated the matter fully and inviting the claimant to a meeting with her.

(h)	On 17 July 2009 the initial time limit expired.

(i)	On 22 July 2009 the claimant consulted with his solicitor for the first time regarding this situation.  He was informed of the three month time limit in which to commence a claim.

(j)	On 23 July 2009, the claimant declined the offer of a meeting and asked for the response to his queries to be put in writing.

(k)	Ms McCreanor responded by letter of 6 August 2009. This was the first substantive reply to the claimant’s letter of 17 April 2009.

(l)	The claimant attempted to discuss the matter with his solicitor upon receipt of the letter of 6 August 2009 but at this time the solicitor was on two weeks annual leave.  The claimant did not think to discuss the matter with another solicitor in the office.

(m)	The claimant met his solicitor on 20 August 2009.  He discussed the claim and the solicitor wrote to him on 25 August 2009 with detailed advice. On 27 August 2009, the claimant contacted his solicitor and confirmed that he wished to instigate a claim in the Industrial tribunals.

(n)	The claim was sent to the Industrial tribunals on 6 September 2009 and received on 7 September 2009.

The Submissions

6.	The claimant states that when he received the letter of 16 April 2009, he acted promptly by phoning the respondent and asking for further information.  When asked to do so, he put this request in writing.  When he did not receive a full response, he contacted the respondent to ascertain the reason. He did not know of the three month time limit until after it had expired.  He did not want to commit himself and his family to the expense of a claim in the industrial tribunal until he had received the information he had requested from the respondent.  It was only after he received the information from the respondent and had an opportunity to discuss this with his solicitor that he felt in a position to make a decision. This was not until 25 August 2009.  The claimant contends that the delay was caused by the respondent’s failure to deal with his request in a timely manner.  If the respondent had replied within a reasonable time frame this would have given the claimant time to consider his options and make his claim within time.

7.	The main thrust of the respondent’s argument was that the claimant was aware from an early stage of the facts upon which he might base a complaint.  The onus is on the claimant to comply with the time limits.  If the claimant had availed of the offer of a meeting, the information he requested would have been available to him before the expiration of the time limit and he would have been able to lodge his claim in time.  The respondent submits that the claimant must have been aware of the existence of the three month time limit before he consulted his solicitor in July 2009 although the respondent quite fairly accepts that no one from the respondent made the claimant aware of any time limits.

8.	The respondent also contends that the claimant did not act promptly once he had the information and knew of the time limits.

9.	The respondent very fairly accepts that no issue of prejudice arises from the failure to lodge the claim in time.
 
The Law 

10.	The provisions of Article 48(1) of the 2006 Regulations have already been set out above.

11.	If the complaint is out of time with regards to the initial three month period the tribunal may consider the case if, in all the circumstances of the case, it considers that it is just and equitable to do so.  The tribunal therefore has a discretion to extend time.

12.	In deciding whether or not to extend the time-limit, a central question is whether or not there can still be a fair hearing. However, other issues are of relevance as well. In particular, I have to bear in mind the fact that the legislator has chosen to impose short primary time-limits. That indicates a legislative policy that discrimination claims should be brought promptly. In deciding whether or not to extend the time-limit, I am entitled and obliged to take account of the length of time which has elapsed from the date of the alleged discriminatory act to the date of presentation of the relevant claim. It is also appropriate that I should take careful note of the length of the period which elapsed between the date on which the claimant first became aware, or could reasonably have become aware, of the fact that he had an arguable case, and the date on which the claim was presented. In considering whether to extend the time-limit, it is also appropriate to have regard to the matters listed in section 33(3) of the 

Limitation Act 1980 (which is operative in England and Wales): See British Coal Corporation v Keeble [1997] IRLR 336. 

Conclusions

13.	I am satisfied that the claim was not presented within the time-limit provided for in Article 46(1) of the 2006 Regulation.

14.	However, I am satisfied, on balance that it is nevertheless just and equitable for a tribunal to consider the claim under the 2006 regulations, in the light of the circumstances, and because of the reasons, outlined in the following paragraphs.
 
15.	I accept that the initial time limit expired on 17 July 2009 being three months from the day on which the act was done.  The claim was not lodged until over seven weeks later.  

16.	I accept the claimant’s position that he was not aware of the three month time limit until 22 July 2009 and I accept that it was not reasonable to expect him to reach a decision on presenting a claim until he had received a substantive response to his initial query.  I take note of the fact that the claimant made his initial query at the earliest possible opportunity and I find that the respondent did not give any cogent or convincing reason for why it took almost three months to reply to that query. It would not be equitable to allow the respondent to benefit from a delay of its own making.  The respondent was well aware of the time limits in cases of this nature and should have responded promptly to the claimant’s query.

17.	I am satisfied that the cogency of the evidence will not be substantially affected by the delay in presenting this claim. I am also satisfied that the delay will not affect the ability of the respondent to receive a fair hearing. 

18.	I have taken full account of the period of delay between 7 August 2009 and 
7 September 2009.  I have noted that the claimant’s solicitor was on leave and I have noted that the claimant wished to consider the financial implications of taking a claim before proceeding further.  I therefore do not think that this delay is fatal to the claimant’s case.

19.	In all the circumstances of this claim I believe it is just and equitable to extend time and accept the claim for determination.

Chairman:

Date and place of hearing:    23 March 2010, Belfast	

Date decision recorded in register and issued to parties: