THE INDUSTRIAL TRIBUNALS

CASE REF:	12947/18

CLAIMANT:			Susan Clarke

RESPONDENT:		Hamid Rizi

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that it has jurisdiction to hear the claimant’s claim as set out in paragraph 7 of this decision.

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge Crothers

Appearances:

The claimant appeared in person and represented herself.

The respondent appeared in person and represented himself.

Issue before the tribunal

1.	The issue before the tribunal was as follows:-

Whether it was not reasonably practicable for the complaint to have been presented before the end of the statutory three-month period and if so whether it was presented within such further period as the tribunal considers reasonable.

Sources of Evidence

2.	The tribunal heard evidence from the claimant and respondent and considered relevant documentation, including medical evidence, in the course of the hearing.

Findings of Fact

3.	Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact, on the balance of probabilities:-

(i)	The claimant claimed that the effective date of termination of her employment was Monday 21 May 2018.  The respondent agreed with this date in his response.  In the course of the hearing however, he submitted that the relevant date was Saturday 19 May 2018.  The tribunal is satisfied that the relevant date is 21 May 2018 in accordance with the claimant’s claim form and the respondent’s response.

(ii)	The claim before the tribunal should have been presented by not later than 21 August 2018.  It was presented on 4 September 2018;

(iii)	The claimant provided correspondence to the tribunal from her general practitioner Dr R McCartney, dated 3 January 2019, which also gave details of current medication relating to dates in December 2018.  The correspondence reads as follows:-

	“I am writing on behalf of the above patient at her request.  Included is a list of current medications.  Susan complains of a number of difficulties over the past number of months, including poor sleep, low mood, reduced interest, concentration and memory.  She is receiving treatment for anxiety and depression.”

(iv)	It was the claimant’s case that she had been diagnosed with fibromyalgia and osteoarthritis on 9 April 2018.  The respondent did not dispute this in his evidence and put no questions in cross‑examination to the claimant.  The main point of his evidence, which he had not put to the claimant, was that she had gone on holiday during the relevant period and that if she was active enough to go on holiday, she should have been active enough to submit a claim within time.

(v)	The tribunal is satisfied that the claimant did inform the respondent of her diagnosis of fibromyalgia and osteoarthritis when she returned to work immediately thereafter.  It is clear that she had some difficulty in doing her work prior to the effective date of termination of her employment and that her medication for the fibromyalgia condition had to be doubled shortly after 21 May 2018.  

(vi)	The tribunal accepts on balance that the claimant is likely to have suffered from the conditions referred to in the medical evidence during the period up to 4 September 2018, in light of her evidence to the tribunal up to that date combined with the content of the medical evidence from her general practitioner.

(vii)	The tribunal accepts that following a conversation with a friend at least two weeks prior to 4 September 2018, the claimant approached the Labour Relations Agency and presented her claim around two weeks thereafter.  The claimant stressed the difficulties presented by her medical condition before and after the relevant period, and referred to the symptoms described in the medical evidence in this regard.  

The Law

5.	(i)	Article 145 of the Employment Rights (Northern Ireland) Order 1996 provides as follows:-

“(1)	A complaint may be presented to an Industrial Tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2)	Subject to the following provisions of this Article, and 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 a 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”.

(ii)	In Palmer and Saunders -v- Southend-on-Sea Borough Council [1984] IRLR 119 May LJ proposed that a tribunal should ask the following question:-

	“Was it reasonably feasible to present the complaint to the Employment Tribunal) within the relevant three months?”

Submissions

6.	Neither party made submissions.

Conclusions

7.	(i)	The tribunal, having carefully considered the evidence and having applied the principles of law to the findings of fact, is satisfied, on the evidence, that it was not reasonably practicable for the claimant to present her claim to the tribunal before the end of the statutory three month period and that it was presented within such further period as the tribunal considers reasonable.

	(ii)	The tribunal will therefore proceed to list the case for hearing in due course.

Employment Judge:

Date and place of hearing:	9 January 2019, Belfast.

Date decision recorded in register and issued to parties: