Farley v Northern Ireland Housing Executive. [2008] NFET 59_05FET (23 January 2008)

FAIR EMPLOYMENT TRIBUNAL

CASE REFS:  59/05FET;
459/05

CLAIMANT:		Katrina Farley

RESPONDENTS:	Northern Ireland Housing Executive

Constitution of Tribunal:

Chairman: (Sitting Alone)	Miss E Mc Caffrey

Appearances:

The claimant was represented by Mr Eamon O’Neill.

The respondent was represented by Mr Ferrity Barrister-at-Law instructed by Jones & Cassidy Solicitors.

DECISION ON AN APPLICATION FOR REVIEW

The decision of the tribunal is that the claimant’s application for review will be granted on the basis that the decision was taken in the absence of a party under rule 34 (3) (C) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and Rule 30 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005. 

The decision of the tribunal in relation to the review of the tribunal’s decision on the hearing of the 8th September 2006 is as follows:

1.	The claim of unlawful discrimination on grounds of religious belief was not presented within the time limit set out in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1988.

2.	It is not just and equitable in all the circumstances of the case to extend the time limit for the tribunal to consider the claim.

3.	The claim of Sex Discrimination was not presented within the time limit set out in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended).

4.	It is not just and equitable in all the circumstances of the case to extend the time limit for the tribunal to consider the claim.

THE ISSUES

1.	The first issue for me to consider is whether to grant the application for a review of its decision following a hearing on the 8th September 2006, whereby the claimant seeks a review of the tribunal’s decision on the basis that the claimant had not been present at the hearing and that the interests of justice require such a review.
2.	Secondly, if I grant the application for review, I then have to go on to consider the following issues:
1.	Whether the claim of unlawful discrimination on the grounds of religious belief was presented within the time limit set out in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1988.
2.	If its not, is it just and equitable in all the circumstances of the case for the Fair Employment Tribunal to consider this claim despite the fact that it was presented out of time?
3.	Whether the claim of unlawful discrimination on the grounds of sex was presented within the time limit set out in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended).
4.	If not, is it just and equitable in all the circumstances of the case for the tribunal to consider this claim, despite the fact that it is out of time?

THE APPLICATION FOR REVIEW

3.	In relation to the application for review, Mr O’Neill on behalf of the claimant contended that the hearing which took place on the 8th September 2006 had been unfair because the claimant was not present and did not have the opportunity to give evidence.  He agreed that the claimant’s failure to attend was because he had advised her that it was not necessary.  He did not agree with the recollection of the matter shared by the Chair and by the representative for the respondent, namely that Mr O’Neill had been given the opportunity to contact his client and to request an adjournment of the matter but had not done so.  Mr O’Neill’s contention was that he had in fact requested an adjournment and had been turned down.  I confirm that this is not my recollection of events.

4.	Mr Ferrity on behalf of the respondent contended that as Mr O’Neill had been present on the hearing on the 8th September 2006 and as such the claimant was represented and there was an opportunity for her representative to make points on her part.  He agreed that had the claimant not been present or represented at all, it would be a different matter, but contended that because the claimant had been represented, there was no issue as to any possible unfairness against her.

5.	On the application for review, I take the view that there is a possibility - I make no comment as to how strong or weak it is - that the claimant’s evidence may have had a bearing on the decision taken in September 2006.  Her representative has said that her non-attendance was a mistake on his part.  I agree with that.  It was not the claimants fault that she was not there and while I take on board the arguments made for the respondent by Mr Ferrity, I believe that it is appropriate in this case to grant the application for review on the basis that the decision was made in the absence of a party and that the claimant should be given the opportunity to give evidence on why, in her view, that the time limits should be extended on the basis that it would be just and equitable to do so.  

6.	Accordingly in this case I find that it would be appropriate to grant the review under Rule 30 of the Fair Employment Tribunal (Rules of Procedure) Regulations 2005 and Rule 34 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

THE REVIEW

7.	On the application for review of the tribunal’s decision, both parties agreed that alleged act of discrimination occurred on 10th August 2004. From the claimant’s evidence and from her application to the Industrial Tribunal, her claim form was received in the Office of the Industrial Tribunals and the Fair Employment Tribunal on 7th March 2005, almost 7 months later.  In a fair employment claim, the claim must be received within 6 months of the act complained of or within 3 months of the date when the claimant had or might reasonably have been expected to have had knowledge of the act complained of.  In this case therefore, the time limit expired at the latest on 10th February 2005.  In the case of the sex discrimination claim, the time limit expired on 10th November 2004.  I make reference below to the relevant legislation.

THE FACTS

8.	The tribunal heard evidence from the claimant and submissions from both representatives on behalf of the respective parties.  On the basis of the evidence before me I make the following findings of fact.  The claimant is employed by the respondent.  The claimant was successful in a competition to be appointed to a Level 4 post and was placed on a reserve list for appointments as and when vacancies at that level arose.  She had previously requested a vacancy in the Cookstown area as it was close to her home.

9.	While she was on maternity leave in the summer of 2004, the claimant received a letter dated 30th July 2004 from the Housing Executive to the effect that she had been appointed to a senior administrative officer post in Cookstown from the 1st September 2004.  She was asked to confirm her acceptance of this post, which she did.  She was aware from conversations with colleagues in the Cookstown office (where she had previously worked) that a colleague named Cedric Musgrove, who had been in a Level 4 position, had left the office in Cookstown at the end of June or beginning of July 2004 and that a lady named Mary Rafferty was acting up in the post.  The claimant was aware from a conversation she had had with the manager of that office that a vacancy at Level 4 would be coming up.  She was aware at this time that Ms Rafferty was a Roman Catholic, the claimant is a Protestant.

10.	The claimant subsequently received a letter from Claire McElhatton, the Personnel Manager of the Housing Executive, apologising for her mistake, and advising her that in fact the post she was being offered was in Omagh rather than in Cookstown.  Subsequently she received a letter from Ms McElhatton dated 10th August 2004, confirming the error which had been made and indicating that the claimant had indicated that she would not accept the post in the Omagh District office.  At this stage the claimant was unhappy and believed that she had been made a firm offer of a post in Cookstown which had subsequently been withdrawn.  She sought legal advice on her position and her solicitors, Faloon & Toal, commenced correspondence with the Housing Executive on her behalf.  She confirmed in her evidence that she had sought advice from Faloon & Toal in relation to a possible sex discrimination claim but that she had been concerned about the likely costs of taking such a claim and so had not pursued the matter at that time.  She had some correspondence through her solicitors with the Housing Executive in relation to a potential breach of contract claim instead.

11.	It was the claimant’s evidence that on or around 10th December 2004 she became aware that Mary Rafferty was still acting up in the Level 4 post in Cookstown and it was only at this stage that she formed the view  that she was the victim of religious discrimination.  Shortly after this, the claimant lodged an internal appeal with the Housing Executive and consulted Mr O’Neill who was a family friend and who she knew dealt with tribunal cases on a voluntary basis.  

12.	When the claimant was asked why she had not lodged her tribunal proceedings at an earlier stage, she indicated that she had discussed the time issue with Mr O’Neill but that she had hoped that the matter would be resolved by an internal appeal.  The claimant’s internal appeal was dealt with on 8th or 9th February 2005 and she received response in relation to that appeal by letter dated 18th February 2005.  Her claim to the Industrial Tribunal was received in the Office of the Industrial Tribunals and the Fair Employment Tribunal only on the 7th March 2005.
RELEVANT LAW

13.	The relevant legislation regarding the fair employment claims is to be found in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1988 which provides as follows:-

“46(1) Subject paragraph (5) the tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of:

“(a) The end of the period of 3 months beginning with the day on which the complainant first had knowledge, or might be reasonably be expected first to have had knowledge, of the act complained of; or 

(b) the end of the period of 6 months beginning with the day the act was done…”

“(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 it is just and equitable to do so”

14.	The relevant legislation regarding the sex discrimination claim is to be found in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) which provides as follows:- 

“76 (1) An Industrial Tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the period of 3 months beginning when the act complained of was done…”

“(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 it is just and equitable to do so.”

16.	I have also considered case law on the issue of when the tribunal should exercise its discretion under the “just and equitable” principle to extend the time for lodging a discrimination claim, including the decision in British Coal Corporation v Keeble (1997) IRLR 336 and a later decision of Robinson v The Post Office subsequently approved by the Court of Appeal for England and Wales in Apelogun-Gabriels v The London Borough of Lambeth [2002] IRLR 116.  It is clear from the cases that an extension of time on the basis that it is just and equitable to extend time will be granted in the situation where the tribunal considers it appropriate “in all the relevant circumstances.”  The tribunal must consider the length of the delay, the reasons for the delay, the position of both parties and the likely prejudice to the parties.  Delay due to waiting for the outcome of an internal appeal grievance is only one of the circumstances which the tribunal can take into account.

DECISION

17.	In this case the act complained of was the decision of the respondent to withdraw its offer of a post in Cookstown as confirmed in its letter of 10th August 2004 to the claimant.  The claimant was aware of the decision prior to that date due to other correspondence which had been received and telephone conversations which she had had with the Housing Executive’s personnel manager.  However the date of 10th August was not disputed by the respondent’s representative.  So the claimant’s claim form should have been lodged with the Office of the Industrial Tribunals by 10th November 2004 in respect of her sex discrimination claim and either by 10th November 2004 or, if one applies the 6 month time limit from the date of the act complained of, by 10th February 2005 for the fair employment claim.  Both claims were lodged on 7th March 2005 and both parties agree that claims are therefore out of time.  The answer to questions 1 & 3 before me is therefore that neither the fair employment claim nor the sex discrimination claim was lodged in time.
18.	I now have to consider whether it would be just and equitable in all the circumstances of the claim to extend the time limit for either the fair employment or the sex discrimination claim or both of them.  The claimant raised the issue of her appointment to a post in Cookstown in correspondence with the respondent over a period of months and sought the advice and assistance of a solicitor in doing so.  It was not until December 2004 that she initiated an internal appeal.  This was outside the normal time limit for doing so, but her employer allowed the appeal to proceed.  The claimant’s evidence to the tribunal that she initiated this appeal only after she became aware on 10th December 2004 that Ms Rafferty was still acting up in a Level 4 post.  The appeal was finalised on or around 18th February 2005 and it was argued on the claimant’s behalf that she awaited the outcome of the appeal before lodging her claim with the tribunal office.  
19.	However the claimant was already well aware of the grounds of her complaint.  She conceded in cross examination that she had been aware from the summer of 2004 that Mrs Rafferty was acting up in the Level 4 post to which the claimant expected to be appointed.  So the complaint really was that Ms Rafferty had continued to act up in that post for an extended period.  The claimant considered this to be discriminatory.  She did not in my view give a satisfactory explanation as to why she only formed this view at this time or why she thought it was inappropriate for Mrs Rafferty to continue acting up in the absence of any permanent appointment to the post.  Her only explanation was that it was not usual for anyone to continue and acting up for more than 3 months, or exceptionally 6 months.
20.	The claimant gave evidence that she had sought legal advice on a possible breach of contract claim.  She also said that she had discussed a sex discrimination claim with her solicitor but had been concerned about the likely cost of this.  She also said that she had discussed the time limits for the claim with Mr O’Neill when she went to see him in December 2004 and at that stage they had decided to await the outcome of the internal appeal.  It seems to me that the claimant had every opportunity to be advised about the time limits for bringing claims before the Industrial Tribunal and indeed was so advised, but failed to bring her claim timeously.  I do not accept that the alleged act of discrimination concerned of was the claimant’s discovery that Ms Rafferty was still acting up in a Level 4 position in December 2004.  The act complained of was the respondent’s confirmation on 10th August 2004 that there was no post for the claimant in the Cookstown office and they were instead offering her a job in Omagh.  The claimant was aware at that time that Ms Rafferty was acting up in Level 4 position in Cookstown; nothing had changed by 10th December 2004.  Accordingly the claimant was in possession of all the necessary facts and information from 10th August 2004.  She had access to legal advice and could have consulted Mr O’Neill whom she subsequently did consult in his role as a family friend.  
Accordingly I find that it would not be just and equitable in all the circumstances of this case to extend the time limit to allow these claims to proceed.  I answer questions 1 & 4 “No” and I order that both the claimant’s fair employment and sex discrimination claims are dismissed.  

Chairman:

Date and place of hearing:		29 November 2007, Belfast.

Date decision entered in the register and issued to the parties: