THE INDUSTRIAL TRIBUNALS

CASE REF:   2712/14

CLAIMANT:			Mark Devenney

RESPONDENT:		Department of Employment and Learning 

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claim of sex discrimination is out of time and that the statutory time-limit should not be extended on just and equitable grounds to permit the claim to proceed.  The claim is therefore dismissed for want of jurisdiction.  

Constitution of Tribunal:
Vice President (sitting alone):		Mr N Kelly

Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mr A Sands, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

Background

1.	This is a claim of unlawful sex discrimination which was lodged in the tribunal on 3 December 2014.  

2.	At a Case Management Discussion on 2 March 2015, the matter was listed for a pre-hearing review to determine:-

“(1)	whether the claimant’s claim of sex discrimination has been presented within the statutory time-limit;

 (2)	if not, whether it would nevertheless be just and equitable to hear and determine the claim.”

3.	The pre-hearing review took place on 25 March 2015.  Both parties made submissions.  The claimant gave evidence on his own behalf.  

Findings of fact

4.	The claimant was at the relevant time a civil servant at Staff Officer level.  He was based in the Department of Education but was on a period of sick leave.  In or around October 2013, he applied for a sideways transfer to various vacancies in DEL (‘the respondent’), including to a vacancy in the Northern Ireland Careers Service Headquarters in Adelaide Street (‘the relevant post’).

5.	The papers indicate that the claimant applied for between 7 and 10 different sideway transfers to the respondent.  He was unsuccessful in each of those applications.  He was told that he had been unsuccessful in his application for the relevant post on 26 November 2013.

6.	On 5 December 2013, the claimant asked for details in relation to seven of those transfer applications and he was provided with those details, approximately 10 days later.  In relation to the post in the Careers Service Headquarters, the claimant was provided with a copy of the questions asked at the interview and it was confirmed to him that neither of the two candidates who had been interviewed had fulfilled the requirements of the post and that the post had been closed.  

7.	On 27 January 2014, the claimant lodged a grievance concerning the vacancy.  He stated he found it difficult to understand why DEL would not accept him for this particular post and asked that the Department should investigate:-

		“What I feel is an injustice in not selecting me for this position.”

8.	HR Connect, who provide personnel services to the NICS, wrote to him on 28 March 2014 and offered a grievance meeting on 8 April 2014.

9.	The claimant did not attend this grievance interview on 8 April 2014 and did not volunteer an explanation for his non-attendance.  

10.	HR Connect e-mailed him again on 17 April 2014 asking for an explanation.

11.	The claimant replied on 18 April 2014 and stated:-

“It is extremely difficult to keep track of grievance procedures whenever HR Connect do not send me back a copy of the grievance - given that I sent it in on an electronic form.  It would be useful if as well as the reference number you could include details of the grievance.  Is this in relation to the post with Careers Service?”

12.	This seems to be an odd reply.  It had, of course, been open to the claimant to have simply printed off a copy of his grievance before sending it electronically or to have kept details of the relevant points, including the reference number, for his own records.  It seems unreasonable to expect HR Connect to send him back a copy.  In any event, the claimant confirmed in evidence to the tribunal that he had one other grievance at that time.  However, he did not properly explain to the tribunal why he had failed to attend, without explanation, the grievance meeting which had been scheduled on 8 April 2014, whatever grievance he thought it concerned.

13.	HR Connect re-scheduled the grievance meeting for 9 May 2014.  The claimant asked for this to be further re-scheduled as it would clash with Giro D’Italia and local transport difficulties.  The grievance meeting scheduled for 9 May 2014 was therefore cancelled at his request.  

14.	The claimant was asked on 6 May 2014 to provide alternative dates for the grievance meeting.  No response was received from the claimant.  HR Connect contacted him again by telephone on 12 May 2014 and by e-mail on 14 May 2014.  No dates were provided by the claimant.  He was eventually advised on 21 May 2014 that his grievance would proceed to a decision on the papers.  He replied some days later on 27 May 2014.  The grievance meeting was   re-scheduled to the week commencing 23 June 2014 and the claimant was asked to confirm his availability during that week.

15.	The grievance meeting eventually proceeded on 27 June 2014.  Mr Fearghal McSorley was the decision-maker.

16.	The claimant stated that he had applied for some 10 posts in total in DEL in the last year.  He stated that he had taken this ‘test’ case as he felt:-

		“There was more to why he was not getting these posts.”

17.	The claimant asked if the post had been filled and, if so, how it had been filled.  Mr McSorley said he would check the position.  The claimant stated that if it had in fact been given to an EOI who had been on a promotion list:-

		“It strengthened his discrimination case.”

18.	The claimant was advised on 31 July 2014 that his grievance had not been upheld.  He was also advised:-

“You queried how the post had been filled and I have established that it was filled by a member of staff within the Branch who was promoted subsequent to the elective transfer competition being completed.”

The claimant was therefore told on 31 July 2014 that the post had been filled in a way in which he believed indicated ‘discrimination’.

19.	The claimant appealed the grievance decision on 1 August 2014.  He stated:-

“I disagree with Mr Keery’s assumption that I am unsuitable for the post.  I had experience in all the areas listed and had a good performance at the SO grade.  Mr Keery states that I am unsuitable, whereby I believe I was a suitable candidate.  It is also unfortunate that he cannot state why I am unsuitable, albeit it is not a requirement of the process.  It is a crazy system that someone can just say I am not appointing you and give no reasons as to why – I believe this is at odds with Equal Opportunity legislation.  It will certainly be an issue should the case proceed to an Employment Tribunal ... .”

The claimant was clearly contemplating industrial tribunal litigation as early as 1 August 2014.

20.	The claimant asked on 29 September 2014 for the published list for the internal promotion competition to Staff Officer level within DEL.  Those lists had been openly published to DEL staff on 25 November 2013 and were not in any way secret.  They could have been asked for or obtained at any earlier stage by the claimant.  

	The claimant did not satisfactorily explain why it had taken two months from the notification of 29 July 2014 for him to make this request.  It was also clear from the claimant’s response to a question asking why he sought the promotions list, that he was concerned both about qualification ‘and the gender of the person concerned’.  It is therefore clear that the claimant suspected gender discrimination at that point in the context of a potential tribunal claim.

21.	The published list was forwarded to the claimant one day after his request on 30 September 2014.  The published list showed only one individual, ie a Sarah Jane Grogan, who had been promoted to Staff Officer from within DEL Career Service Headquarters.  Since the claimant had already been advised specifically by Mr McSorley on 31 July 2014 that the relevant post had been filled by a promotion from within the Branch, the claimant knew on 30 September 2014 that the post with which he was concerned had been filled by a female candidate from within the Branch.  He could and should have acquired this information much earlier.

22.	The grievance appeal meeting was held on 23 October 2014 before Ms Janine Smyth.  The claimant maintained that he had been a suitable candidate for the post.  The notes record that he agreed that one of his grounds of appeal could be summarises as:-

“It is a crazy system that someone can say they are not approving you and give no reason as to why.  Mr Devenney believes this to be at odds with Equal Opportunity legislation.”

	The notes further record, inter alia:-

“Mr Devenney advised that he had been for elective transfers before and interviewer gave feedback but he could not accept someone saying they ‘did not like the look of you’.  Ms Smyth advised that she did not believe that was said and asked Mr Devenney if this had been said to him.  Mr Devenney asked Ms Smyth how she knew this was not said.  Ms Smyth asked Mr Devenney what grounds he had to support this.  Mr Devenney said he had not been told why he was not suitable so this left him to think it was because they did not like the look of him.”

“Ms Smyth asked Mr Devenney what outcome he wanted from his grievance appeal.  Mr Devenney stated he would like the job.  Ms Smyth asked Mr Devenney if he appreciated that someone else was now in the post.  Mr Devenney replied that he did not care and that was an issue for HR to sort as they did not follow procedures.”

“Ms Smyth asked Mr Devenney if he had anything to add.  Mr Devenney replied that was in relation to Point 2 of the grievance appeal.  Ms Smyth reminded Mr Devenney that she would not be looking into the suitability of the other individual.  Mr Devenney explained it was the processes applied and he would like her to investigate how the individual was successful.  The timeline of the promotion process in relation to the elective transfer process, when Mr Keery realised someone was on the promotion list and what correspondence there was between DEL, HR and Mr Keery.”

23.	The claimant did not allege any breach in procedures other than the fact that he had not been selected.  The grievance appeal decision was given to the claimant on 28 November 2014.  His appeal was not upheld.  

24.	On 2 December 2014 the claimant first complained in an internal complaint that he had been discriminated against on grounds of gender.  He stated that he was making this complaint:-

		“Given new evidence that has recently come to my attention.”

Relevant law

25.	Article 76(1) of the Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’) provides:-

“... an industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of –

(a)	the period of three months beginning when the act complained of was done; or 

... .”

26.	Article 76(5) of the 1976 Order:-

“(5)	A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

27.	There is no presumption in favour of an extension of time where a claim has been lodged beyond the three month statutory time-limit.  The onus is on the claimant to convince the tribunal that it is just and equitable to extend time.  Time-limits in employment cases are intended to apply strictly – Robertson  v  Bexley Community Centre [2003] IRLR 434.  In that case, Lord Justice Auld stated:-

“It is also of importance to note that the time limits are exercised strictly in employment and industrial 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.  Quite the reverse.  A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time.  So, the exercise of discretion is the exception rather than the rule.  It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a Tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view.  ... .”

28.	In British Coal Corporation  v  Keeble [1997] IRLR 336, the Employment Appeal Tribunal suggested an industrial tribunal would be assisted by the factors mentioned in the Limitation Act which deals with the exercise of discretion by the courts in personal injury cases.  That requires the court to consider the prejudice which each party would suffer as a result of the decision to be made and also to have regard to all the circumstances of the case and, in particular, to:-

		“(a)	the length of and reasons for the delay,

(b)	the extent to which the cogency of the evidence is likely to be affected by the delay,

(c)	the extent to which the party sued co-operated with any request for information,

(d)	the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action, and

(e)	the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.”

29.	In Chohan  v  Derby Law Centre [2004] IRLR 685, the EAT summarised the legal principles in relation to extension of time on just and equitable grounds.  It stated that:-

		“The use of a checklist under the Limitation Act is often useful.

Although it is not a requirement that a tribunal go through the checklist, failure to consider a significant factor will amount to an error of law.”

Decision

30.	The alleged acts of discrimination occurred in November 2013 when the claimant was interviewed for the post and was unsuccessful and in the subsequent period up to 20 January 2014 when the post was filled by a female EOI who was on the DEL promotion list.  Since the tribunal application alleging sex discrimination was not lodged until 3 December 2014 the application is, on its face, out of time.

	The question remains as to whether time should be extended on just and equitable grounds up to 3 December 2014.  The tribunal has a wide discretion in this matter.  All relevant factors must be considered including the factors set out in the Limitation Act, whether a fair trial is still possible and any potential prejudice to parties.

31.	In this case, there was clearly fault on both sides in relation to the early parts of the grievance procedure.  It took the respondent some two months, through HR Connect, to arrange a grievance meeting.  There were further slight delays on the respondent’s part on issuing decisions in the grievance process.  That said, the consideration of an application of this nature requires the tribunal to focus on the applicant’s conduct.  It is clear that the initial grievance meeting was arranged for 8 April 2014 and that the grievance meeting was ignored by the claimant.  He failed to turn up and he failed to explain why he did not turn up.  He sought to state later on in correspondence and in evidence before the tribunal that he was confused as to which grievance it concerned.  That is not a complete or indeed any explanation for his behaviour.  It would have been simple; and it would have been good manners, for the claimant to have written back to HR Connect seeking clarification of the precise grievance involved, rather than to have ignored the meeting.  It would have been easy for the claimant to have turned up at the meeting and to have put forward his position.  

32.	HR Connect made significant efforts to conclude the matter through a grievance meeting.  It was re-scheduled for 9 May 2014 and further postponed at the claimant’s request.  The claimant failed, despite reminders, to respond to a request for alternative dates for some 21 days.  The claimant’s response to his grievance up to this point was unenthusiastic.

33.	It is also clear that the claimant was alive at an early stage to the issue of potential discrimination.  On 27 June 2014, the claimant mentioned ‘discrimination’, if the post had been filled by an EOI from the promotion list.  That had in fact occurred almost six months earlier but the claimant had failed to take proper advice, had failed to use the statutory questionnaire procedure and had simply failed to ask a direct question as to who had filled the post at any point in those six months.  Since he was clearly concerned about discrimination, he could have asked for the gender or for other protected characteristics of the promotee.

34.	Even when he was told, on 31 July 2014, that the post had been filled by an EOI on the promotion list, which would have confirmed his fear of discrimination as expressed on 27 June 2014, the claimant did not take proper advice, did not use the statutory questionnaire procedure and did not lodge a claim.

35.	The claimant mentioned tribunal litigation on 1 August 2014 but again did nothing about it.

36.	The claimant got the published list on 30 September 2014 which clearly identified the relevant EOI as a female.  Again he did nothing about it.

37.	It is also clear that the claimant was at all relevant times a Staff Officer in the Civil Service and can therefore be presumed to have been familiar with the possibility of obtaining appropriate legal advice, either from the Equality Commission or elsewhere.  It is significant that he chose not to do so and according to his evidence to the tribunal, did not in fact seek legal advice until November 2014.  

38.	It is also clear that the passage of time would have had some effect on witnesses recollection but probably not a significant effect.  By the time any substantive hearing in this could take place, some 18 months will probably have elapsed since the relevant incidents.  That said, a fair trial would probably still be possible with no particular additional prejudice to the respondent.

39.	However the tribunal must also consider the length and reasons for the delay.  The delay in this case is significant and no convincing reason has been put forward by the claimant for his failure to either investigate his suspicions and to lodge has claim within the three month limit or to have done so at any stage earlier than 3 December 2014.

40.	The respondent has by and large co-operated with requests for information.  The details requested at the grievance meeting were given promptly.  The promotion lists were given promptly.  Despite the claimant’s obvious concerns about an unspecified form of discrimination, he did not ask the right question or use a statutory questionnaire.  

41.	The claimant throughout this matter has approached his claim in a casual and dilatory manner.  He did not attend the initial scheduled grievance meeting.  He delayed the re-scheduling of that meeting.  He delayed investigating the question of who got the post and when he got the information on 30 September 2014, he did nothing about it.  

42.	According to his evidence to the tribunal, the claimant failed to seek advice in this matter until he approached the Equality Commission in November 2014.

43.	Overall, this is a case where the claimant delayed and delayed until almost one year has elapsed since the latest act of alleged discrimination.

44.	This is not a proper case for the exercise of the discretion to extend time on just and equitable grounds.  No such case has been made out by the claimant.

45.	The claimant is therefore struck-out as out of time.

Vice President

Date and place of hearing:	25 March 2015, Belfast

Date decision recorded in register and issued to parties: