Gill v Northern Ireland Human Rights Commission & Anor [2004] NIFET 540_00 (23 February 2004)


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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Gill v Northern Ireland Human Rights Commission & Anor [2004] NIFET 540_00 (23 February 2004)
URL: http://www.bailii.org/nie/cases/NIFET/2004/540_00.html
Cite as: [2004] NIFET 540_, [2004] NIFET 540_00

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    FAIR EMPLOYMENT TRIBUNAL

    CASE REF: 00540/00FET

    03245/00

    APPLICANT: Whyed Gill

    RESPONDENTS: 1. Northern Ireland Human Rights Commission

    2. Ms Paddy Sloan

    DECISION

    The unanimous decision of the tribunal is that the application was submitted within the relevant time limit and is therefore admitted for hearing.

    Appearances:

    The applicant attended alone and was unrepresented.

    The respondents were represented by Ms White of Jones & Cassidy Solicitors.

  1. The case came before the tribunal to consider the following preliminary issues:-

    2. (i) Was the application presented within the specified time limit?

    (ii) If not, is it just and equitable, in all the circumstances of the case, for the Fair Employment Tribunal to consider this complaint despite the fact that it is out of time?

  2. By originating application received in the tribunal on 7 December 2000 the applicant alleged that he had been discriminated against by the respondents on grounds of race and religion by their failure to short-list him for the post of Bill of Rights Educator. The applicant was informed of this by letter posted by first-class post from the first named respondents on 5 September 2000. This was confirmed by the first named respondent's post book for that day.

  3. The tribunal firstly considered whether the application was presented within the relevant time limit. It was argued for the respondent that taking into account the principles set out in the case of Consignia PLC –v- Sealy 2003 All ER 801 it would be reasonable to expect that first-class post would be delivered by the second day after postage and that the time limit for presenting the claim should therefore expire on 6 December 2000. The tribunal heard evidence from the applicant in relation to this. The applicant argued that he was working in England in 2000 coming home every second weekend and that there may have

    4. been a delay in dealing with his post. He argued that he gave his wife permission to open his post if he was expecting correspondence and as he had applied for this position sometime earlier he was not expecting correspondence. The applicant argued that he had applied for some 200-300 jobs and had only applied to the tribunal for redress in less than 30. He argued that he was not an expert on the legal position although he conceded that he was aware of the time limits. The applicant argued that it was unreasonable of the first named respondent to ask for a ruling on the time issue in a technical way given the nature of the first named respondent's occupation and the issue should progress to full hearing. The applicant argued that his application was not presented earlier because his first priority was to his family and he had failed to prioritise his litigation. The applicant was unable to explain why at point 13 of his originating application which asked "When did the matter of which you are complaining happen?" He had replied, "The 5th September 2000". He argued that he had not been aware of the correspondence until 8 September 2000. The applicant relied heavily on his diary entries for the relevant period in relation to his work in England and which he alleged had prevented him from claiming earlier. The tribunal adjourned the case to enable to applicant to go home to retrieve his diary so that relevant entries could be substantiated. Later in evidence it was established that the applicant was unemployed in September 2000.

  4. Ms White argued for the respondents that there were many inconsistencies in the applicant's evidence in relation of his working and his claims for Social Security Benefits which had taken place during the relevant period. Ms White argued that the applicant did not treat his claim seriously and left it until it was too late to submit his originating application.

  5. The tribunal found the following facts in relation to this application.

    6. (a) We found that the letter refusing to shortlist the applicant was posted to him on 5 September 2000 by the first named respondent.

    (b) We found that the applicant would have received the rejection letter by 7 September 2000 taking into account the principles set out in Consignia PLC –v- Sealy and having regard to the fact that he was not in England at that time.

    (c) The tribunal took into account Article 46(1) of the Fair Employment and Treatment Order (Northern Ireland) 1998 which states that the period for presenting the application is three months beginning with the day the applicant first had knowledge or might reasonably be expected first to have had knowledge of the act complained of. The tribunal also took into account Section 39(2) of the Interpretation Act 1954 which states that where a period of time is expressed to begin on a particular day i.e. in this case 7 September 2000 that day must not be included in the period. As 7 September is therefore not taken into account the application received in the tribunal on 7 December 2000 is within the relevant time limit.

    The application is therefore admitted for hearing as it was submitted within the specified time limit.

    Chairman:

    Date and place of hearing: 23 February 2004, Belfast.

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIFET/2004/540_00.html