THE INDUSTRIAL TRIBUNALS

CASE REF:  1995/06

CLAIMANT:			Karen Thompson

RESPONDENT:		BHS Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claim was not presented within the specified time limit but it is just and equitable in all the circumstances of the case for an industrial tribunal to consider this complaint despite the fact that it is out of time.

Constitution of Tribunal:
Chairman (sitting alone):		Ms J Knight

Appearances:
The claimant appeared in person and represented herself.
The respondent was represented by Mr N McSorley of Carson McDowell, Solicitors acting as agent for DLA Piper UK LLP.

ISSUES FOR THE TRIBUNAL

1.	Was the claim presented within the specified time limit?

 2.	If not, is it just and equitable, in all the circumstances of the case, for an industrial tribunal to consider this complaint despite the fact that it is out of time?

The chairman considered the originating claim of the claimant, the respondent’s response and the oral evidence of the claimant.  The chairman also considered an agreed bundle of documentation and the submissions made by the parties. 

FINDINGS OF FACT:
The chairman finds the following facts to be proved on a balance of probabilities:

1.	The claimant, Mrs Karen Thompson, has been employed by the respondent company since 6 September 1986 and is currently employed as Retail Store Manager in the Belfast store.  Since 20 March 2006 the claimant has been line managed by Ms Antonia Collins. The claimant lodged an originating claim with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 3rd October 2006 in which she contended that she had been subjected to unlawful discrimination on grounds of her sex by the respondent arising out of treatment of her by the respondent in May 2006.

2.	On 10 May 2006 the Belfast store held an event day for cardholders which ran from 9.00am until 9.00pm.  The claimant left the store before the end of the event day at 6.35pm to pick up her seriously ill dog from the vets, leaving the Assistant Store Manager in charge for the remainder of the trading day.  Although the claimant had had a conversation in store earlier in the day with Ms Collins about her dog’s illness, she did not tell her that she would be leaving early. At approximately 7.45pm the claimant received a telephone call from the Belfast store to inform her that Mr Tony Brown, the Retail Director, had called to congratulate her on the store’s performance.  The claimant then telephoned Mr Brown and apologised to him for not being present to take his call.  The claimant told the tribunal that she then telephoned Ms Collins who allegedly spoke to her in an abusive manner and said that she would see the claimant on Monday.

3.	The respondent sent a letter to the claimant by recorded delivery letter on 13 May 2006 requiring her to attend an investigation meeting on 15 May 2006 at 11.00am at the Lisburn store.  The letter stated that the claimant had the right to representation by either a fellow employee or an accredited member of a trade union and that it was important that she was fully aware of the seriousness of this investigation which “may result in formal disciplinary action being taken”.  

4.	The investigation meeting duly took place at the appointed time and only the claimant and Ms Collins were present, the claimant having decided, following receipt of advices from a senior work colleague, not to be accompanied. The fact that the claimant had left the event day early was discussed and the meeting concluded with the claimant confirming her support for Ms Collins and agreeing to “over communicate” with her.  Ms Collins told the claimant that she would report back to Tony Brown and that the claimant would be provided with a copy of this report. Handwritten notes of this meeting are contained within the bundle although the claimant disputes that notes were made by Ms Collin contemporaneously.  The respondent contends that a letter of concern dated 15 May 2006 was sent to the claimant although she denies receiving it until shortly before the pre hearing review, in documents provided to her by way of discovery from the respondent’s solicitor.  It is disputed between the parties whether the respondent’s actions constitute formal or informal action under the respondent’s disciplinary procedure, although they do agree that no disciplinary sanction was invoked against the claimant following this meeting.

5.	On 4 July 2006 Ms Collins conducted an annual performance and development review of the claimant which was critical of the claimant. The claimant agreed that she did not contest this in any way although she was not happy with Ms Collins’ conclusions.

6.	On 9 August 2006, Mr Neil Jones, Store Manager of the respondent’s Trafford Park store, informed the claimant in a telephone conversation that on 28 June 2006 he had left his store before the end of trade during a cardholders’ event, without informing his regional manager.  He allegedly told the claimant that Tony Brown had telephoned the store and was annoyed that Mr Jones had gone home.  Despite this, the claimant was told, that no action, formal or informal, had been instituted against him by the respondent.  

7.	The tribunal accepted the claimant’s evidence that she subsequently sought advice within a couple of days from the Equality Commission for Northern Ireland. She spoke to a number of advisers from the Equality Commission and was subsequently sent out by post an information pack. When this did not arrive, the claimant went to the Equality Commission to collect another pack.  She was advised by the Commission to raise a grievance and in relation to time limits for lodging her complaint to the Industrial Tribunal. 

8.	On 26 August 2006 the claimant raised a formal grievance in which she alleged that she had been subjected by the respondent to unlawful discrimination on the grounds of her sex, contrary to the Equal Treatment Directive and on grounds of her religious belief and political opinion.  She also served two statutory questionnaires under the Sex Discrimination (Northern Ireland) Order 1976 and the Fair Employment Treatment Order 1998.  Following grievance hearings on 8 and 19 September 2006 and further investigations, the respondent wrote to the claimant 26 September 2006 to advise her that her grievances, which were addressed separately, were not upheld. The claimant subsequently appealed on 7 October 2006 which was heard on 26 October 2006.  

9.	As already stated, the claimant lodged her originating claim to the industrial tribunal on 3 October 2006. 

10.	On behalf of the respondent it was contended that the claim was lodged out of time because the incidents complained of took place on 10 May 2006 and at the investigatory meeting convened on 15 May 2006.  On 15 May the claimant’s line manager confirmed that the matter was not to be progressed to a disciplinary hearing.  The claimant’s grievance was not raised with her employer until 26 August 2006 being outside the primary three month time limit for a complaint of sex discrimination, and also outside of the time limit which would enable her to qualify for an extension of time in accordance with the Dispute Resolution Regulations.  Accordingly it was submitted that the tribunal does not have jurisdiction to consider the claimant’s complaint.

11.	The claimant accepted that she had lodged her claim with the tribunal more than three months after the treatment complained of was that she had acted promptly as she could when she became aware on 9th August 2006 of the possibility that she had been treated less favourably than her male colleague.

THE RELEVANT LAW

Article 76 (1) of the Sex Discrimination (Northern Ireland) Order 1976 (hereinafter referred to as the “SDO”) provides that: 
“An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal “before the end of the period of three months beginning when the act complained of was done.”  

Article 76 (5) of the SDO provides:
“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.”

The statutory grievance procedures apply to the claimant’s claim. The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 provide for the extension of time limits for presenting claims.  Regulation 15 (1) provides that where a complaint is presented to a tribunal under jurisdiction listed in Schedule 2 or 3 or, as the case may be, under Article 38 of the Order of 1998 and –

	(b)	either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph 3 applies; the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.  Regulation 15 (3) provides that the circumstances referred to in paragraph 1(b) are that the employee presents a complaint to the tribunal –

	(a)	within the normal time limit for presenting the complaint but in circumstances in which Article 19 (2) or (3) or Article 21 or (2) of the Order of 2003 does not permit him to do so; or 

	(b)	after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 1 in relation to his grievance within that normal time limit.

CONCLUSIONS

1.	The chairman was satisfied that more than three months had elapsed since the alleged act of discrimination in this case which occurred in May 2006. The chairman was further satisfied that there could be no extension of time under Regulation 15 of the 2004 Statutory Dispute Regulations because her grievance which constituted the subject matter of the originating claim to the industrial tribunal was not lodged with her employer until 26 August 2006.

2.	The chairman then went on to consider whether it should exercise its discretion to extend the period for presenting the complaint and considered whether if in all the circumstances in this case it was just and equitable to do so.  The onus is on the claimant to convince the tribunal that it is just and equitable to extend the time limit and the tribunal must consider the prejudice which each party would suffer as a result of granting or refusing the extension and to all the circumstances of the case which include –

a)	the length and reason 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 parties sued co-operated with any requests for information;

d)	the promptness with which the claimant acted when she knew of the facts given rise to the cause of action; and

e)	steps taken by the claimant to obtain appropriate legal advice when she knew of the possibility of taking action.

3.	The chairman was satisfied on the facts that the claimant had acted promptly once she became aware of the facts which might give rise to a complaint of unlawful sex discrimination.  The chairman concludes that the claimant did not know, prior to the 9 August 2006, that she may have been treated less favourably than a male colleague.  Further the tribunal is satisfied that the claimant acted promptly, once she did become so aware, to obtain appropriate advice from the Equality Commission for Northern Ireland.  The chairman took into account in weighing the prejudice to the parties in exercising this discretion that the respondent has already been able to carry out an investigation into the claimant’s allegations of unlawful sex discrimination during the course of the grievance procedure.  On the other hand if the tribunal does not exercise its discretion to extend the time limit in this case the claimant will clearly be prejudiced as she will not be able to pursue her claim, in circumstances where she only became aware of the possibility of less favourable treatment, after the expiry of the primary time limit.

4.	The chairman is therefore satisfied that it is just and equitable to extend the time limit and directs that a Case Management Discussion will be convened to make arrangements for the hearing of this claim.

Chairman:

Date and place of hearing:	22 June 2007, Belfast

Date decision recorded in register and issued to parties: