Henvey v Breen & Ors  (Preliminary Issues)  (6 November 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	1787/01

APPLICANT:		Teresa Henvey

RESPONDENTS:		1.	Gerard Breen
2.	Neil Sinclair
3.	P Magee
4.	Social Security Agency

DECISION

The unanimous decision of the Tribunal is that:-
(a)	the complaints regarding the first and second respondents are out of time and it is not just and equitable to extend the time limit for presenting the claim;
(b)	the third respondent is not a proper respondent and he is dismissed from the proceedings.
(c)	the applicant’s complaint regarding the investigation carried out by the fourth respondent is within time.
Appearances:
The applicant was represented by Mr Rosbotham of NIPSA.
The respondents were represented by Mr Turkington, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

1.	This application before the tribunal deals with the following preliminary issue:-

“whether the tribunal has jurisdiction to hear the application in view of the time limits set out in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976”.

2.	The applicant’s complaint as set out in the Originating application is threefold:-

(i)	That the first and second respondents falsified records pertaining to the applicant’s sick leave.

(ii)	That a subsequent internal investigation into those complaints was not concluded in the applicant’s favour, and was not properly conducted.

(iii)	That on a previous occasion, she had been denied overtime, when it had been made available for three full-time male colleagues.

3.	It was accepted that the applicant first became aware of the documents which were the subject of her complaint in May 2000, when she was on temporary transfer from Benefits Investigation Branch to Benefit Review Branch in Castle Court.  Those documents related to alleged events in 1998, at the Benefits Investigation Branch.

4.	The applicant was very concerned to discover records which she believed had been falsified, but she took no steps to raise the matter until 25 September 2000 when she wrote to her union representative.  She met with the said representative on 7 November 2000.  Following this meeting she wrote a formal letter of complaint to management within Benefits Investigation Branch on 23 November 2000.

5.	On 12 December 2000, a Senior Manager named Eithne Evans became involved and interviewed the applicant.  On 2 January 2001, the applicant wrote to Ms Evans requesting an update on the situation following her interview.

6.	On 9 January 2001, Carole Hetherington, Deputy Principal, referred the matter to the Personnel Branch of the fourth respondent.

7.	On 1 February 2001, the applicant was officially informed of the outcome of the investigation.  At the request of the applicant’s representative, the Equal Opportunities Unit of the fourth respondent launched a further investigation.

8.	The Originating application dated 16 March 2001 was lodged on 3 April 2001.

9.	It was accepted that the complaints concerning the first and second respondent’s alleged falsification of records and denial of overtime were out of time.  The applicant contended however, that the tribunal should exercise its discretion to extend time on just and equitable grounds.

10.	The applicant gave evidence that when she discovered the alleged fabricated documents, although she was extremely concerned, she did not know what to do about the matter.  She was not working in the Branch in which these events had allegedly occurred, since she was on a temporary transfer, and she felt isolated.  She stated that she did not have the confidence to raise the matter with her line manager whom she hardly knew.  She accepted that she could have raised it with her line manager in Benefits Investigation Branch, or with her union representative, but simply stated that she did not know what the proper procedure was for dealing with the matter.  The applicant acknowledged that it was only when her transfer was coming to an end, and she knew she would be going back to her Branch that she felt she had to take some advice on the issue and contacted her union on 25 September 2000.  She alleged that she knew nothing about tribunals or the existence of the Equal Opportunities Unit.

11.	Thereafter, she stated that she was hopeful that the internal investigation would have resolved the matter, and was content that the matter should be dealt with in that way.

12.	The catalyst for lodging proceedings was the unfavourable outcome of the investigation, the conclusions of which were made known to her on 1 February 2001.

13.	The tribunal was referred to a number of authorities which offer guidance on the exercise of the tribunal’s discretion:-

Robinson  v  Post Office [2000] IRLR 804

Apelogun-Gabriels  v  London Borough of Lambeth [2002] IRLR 116

British Coal Corporation  v  Keeble [1997] IRLR 336

It is clear that whether it is just and equitable to extend time is primarily a question of fact for the tribunal.

Harvey at Volume 2 L Para 559 cites a non-exhaustive list of factors which may prove helpful in assessing individual cases:-

(a)	the presence or absence of any prejudice to the respondent if the claim is allowed to proceed (other than the prejudice involved in having to defend proceedings);

(b)	the presence or absence of any other remedy for the applicant if the claim is not allowed to proceed;

(c)	the conduct of the respondent subsequent to the act of which complaint is made up to the date of the application;

(d)	the conduct of the applicant over the same period;

(e)	the length of time by which the application is out of time;

(f)	the medical condition of the applicant taking into account , in particular, any reason why this should have prevented or inhibited the making of any claim;

(g)	the extent to which professional advice on making a claim was sought and if it was sought, the content of any advice given.

In Apelogun-Gabriels  v  London Borough of Lambeth the Court of Appeal rejected the view that as a general principle it will be just and equitable to extend the time limit where the applicant was seeking to redress a grievance procedure before embarking on legal proceedings.

“The correct law for whether it is just and equitable to extend the time limit for presenting a discrimination complaint which is out of time because the applicant was pursuing internal proceedings was laid down by Robinson  v  Post Office rather than Aniagwu.  The fact, if it be so, that the employee had deferred proceedings in the tribunal while awaiting the outcome of domestic proceedings is only one factor to be taken in account …”.

14.	In the tribunal’s view, the delay can be divided into two parts:-

(a)	the delay between the applicant becoming aware of the alleged falsified documents (May 2000) and deciding to seek advice from  her union representative (September 2000); and

(b)	the delay between seeking advice, and the lodging of proceedings (3 April 2001).

In relation to the first period of delay, the tribunal is not satisfied that there are any grounds on which it should exercise its discretion to extend time.

The applicant has worked in the Civil Service for some 16 years, and has been a member of her union for a number of years.  She is an intelligent, articulate woman.  The tribunal does not accept that there was any good reason why she failed to take immediate steps to seek advice on her complaint from either her union representative, or line management.  There was nothing to stop her doing so, and the tribunal concludes that the applicant took a conscious decision to do nothing until her temporary transfer ended and she was faced with returning to her original place of work.

In relation to the second period of delay, Mr Rosbotham explained to the tribunal that it is the union’s normal policy to lodge a ‘protective originating application’, even where attempts are being made to resolve matters internally.  This was not done in this case.

Mr Rosbotham explained that the applicant was content to allow her complaints to be resolved internally, and in any event the claim was already out of time when the applicant sought his advice.  The applicant confirmed that she only decided to issue proceedings when the outcome of the investigation was not satisfactory.

In the tribunal’s view, given that the events of which the applicant complained occurred in 1998, and indeed the events leading to the overtime complaint occurred even earlier, there is no good reason why the applicant delayed in lodging proceedings between May 2000 and April 2001.  The applicant was advised by an experienced union representative, and there was no suggestion by the applicant that she had been wrongly advised.  In all the circumstances therefore the tribunal is not satisfied that the time for lodging proceedings against the first and second respondents should be extended.

15.	In her reply to an Order for Particulars, the applicant also relied on the alleged ‘coaching’ for promotion of a Mr Strange by the second named respondent.  This complaint does not appear in the body of the originating application.  However, even if the applicant was entitled to rely on this complaint it is clearly also out of time since Mr Strange was promoted between October 1999 – May 2000 and for the reasons already stated the tribunal does not consider it appropriate to extend the time.

16.	The originating application also complains about the manner in which the internal complaint was dealt with.  It states:-

“The decision made by Social Security Agency Personnel was not in my favour despite overwhelming evidence which had been made available to me and to that end I believe the investigation was not properly conducted.”

The respondent objected to this aspect of the claim being allowed to proceed even though it is within time, because when the applicant was ordered to give full and precise particulars of ‘each and every act of discrimination alleged’, she did not cite the investigation as a particular of discrimination.  Mr Rosbotham explained that in drafting the replies to the Order he had assumed that it related solely to the allegations the applicant would be making about management, and that he did not consider including allegations about how the investigation had been conducted.  He did however rely on the fact that the complaint was clearly referred to in the body of the originating application.

In addition, the tribunal notes that at Paragraph 12 of the application the application cites 1 February 2001 as being the date on which the matter of which she was complaining had happened.
This is the date on which she was notified of the decision of the investigating panel.

It is of course, unsatisfactory that the applicant failed to give full particulars of this matter in the reply to the tribunal’s Order.  However, the tribunal is satisfied, that it was an error on the part of Mr Rosbotham, and in view of the clear complaint about the conduct and outcome of the investigation contained in the originating application, the tribunal is satisfied that this was also intended to be a ground of sex discrimination.

The respondent concedes that the complaint about the investigation is within time.

17.	In relation to the third named respondent, Mr Magee is head of personnel with the fourth respondent.  However, both parties accept that he played no actual part in the conduct of the investigation, or in its outcome.  In those circumstances, the tribunal is not satisfied that he is a proper party to these proceedings, and he is hereby dismissed.

18.	Accordingly, the complaint may proceed only in relation to the conduct and conclusions of the internal investigation.

Chairman:

Date and place of hearing:		6 November 2002, Belfast

Date decision recorded in register and issued to parties: