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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McAtee v Ministry of Defence [2007] NIIT 2745_02 (12 March 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/2745_02.html Cite as: [2007] NIIT 2745_02, [2007] NIIT 2745_2 |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2745/02
CLAIMANT: John McAtee
RESPONDENT: Ministry of Defence
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant's claim has not been presented within the respective time limits stipulated by Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 and Regulation 8(2) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 and therefore the tribunal does not have jurisdiction to entertain the claimant's claims.
The tribunal further decides that it was reasonably feasible for the originating claim to have been presented within the time limit stipulated by the Working Time Regulations (Northern Ireland) 1998 and that it is not just and equitable to extend the time limit for presenting the originating claim pursuant to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000.
Constitution of Tribunal:
Chairman (sitting alone): Ms J Knight
Appearances:
The claimant appeared in person and represented himself.
The respondent was represented by Ms S Bradley, Barrister-at-Law, instructed by The Crown Solicitor's Office.
1. The issues for the tribunal were:-
Whether or not the claimant's claim has been presented within the respective time limits stipulated by Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 and Regulation 8(2) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000.
If not, should the tribunal exercise its discretion to extend the time for presenting the claim?
The tribunal considered the originating claim and the oral evidence of the claimant, the respondent's response and had opened to it an agreed bundle of documentation.
2. The tribunal found the following facts to be proved on a balance of probabilities:-
The claimant served in the Ulster Defence Regiment and subsequently the Royal Irish Regiment from November 1970 until 10 October 2002. He worked on average 40 hours per week. From 1 February 1999 until October 2002 this was the claimant's only employment.
From 1 February 1998 until 30 April 2001 the claimant was employed by the respondent on a Home Service Part-time (HSPT) contract but worked on a full-time basis. Under his terms and conditions of contract, the claimant was not entitled to receive such benefits as holiday pay and pension rights as were his colleagues employed under full-time contracts. This is because the respondent regards part time members of the Royal Irish Regiment to be casual workers rather than part time employees entitled to benefits on a pro rata basis with those persons employed on full time contracts.
The claimant submitted an application for redress of complaint, on 13 September 2001 in which he claimed entitlement as a full time soldier to paid annual leave, pension entitlement and travel warrant entitlement during the period from 1 February 1998 until 30 April 2001. The redress of complaints procedures is the respondent's internal grievance procedure which provides that a complaint must be lodged within three months beginning with the day on which the matter complained of occurred. The respondent wrote to the claimant on 8 November 2001 to advise him that his application for redress of complaint was rejected on the basis that it had been presented outside the three month time limit specified by the internal procedures. In the same letter, the claimant was informed “This does not affect your access to Industrial Tribunal”. The letter went on to say: “However you should be aware that complaints of a similar nature have been submitted inside the time limit. These complaints have been investigated and considered at the case conference. As they are centred around issues of policy, it is probable that they will be forwarded to the next level for further consideration and staffing as necessary. Therefore, it may be that any outcome of these cases may affect yourself.” The respondent accepted at the Pre Hearing Review that for the purposes of the statutory provisions the claimant had made a complaint under the redress of complaint procedures for the period from 1 February 1998 until 30 April 2001.
The claimant reverted to working part time hours as from 1 May 2001 until his service ended on 10 October 2002. On 7 October 2002 the claimant wrote to the Armed Forces Pension Administrator claiming that he was entitled to pension rights. This letter was not before the tribunal but its existence was not disputed by the respondent. The claimant told the tribunal that the purpose of this letter was to safeguard his potential entitlement to a pension should the respondent change its policy in relation to the entitlement of part time members of the RIR to pension and other benefits. The claimant stated that he did not intend this letter to be an application for a redress complaint and it would not have in any event complied with the internal redress of complaints procedure. The claimant agreed that he had not submitted an application for a redress of complaint in respect of the period subsequent to 30 April 2001.
The claimant submitted his originating claim to the industrial tribunal on 6 December 2002. The claimant's case is one of a group of similar cases involving part-time members of the armed forces who allege less favourable treatment by reason of their part-time status. At the pre-hearing review the claimant stated that his claim of less favourable treatment related to the whole period of his employment and not simply the period from 1 February 1998 until 30 April 2001. At Item 12 of the originating claim form which asked the claimant to specify, “When did the matter of which you are complaining happen?” the claimant had written, “1972 to 2002”
The claimant agreed that his originating claim was submitted to the Office of the Tribunals more than six months after 30 April 2001. He had not sought legal advice and had told the tribunal that the reason why he had not submitted his complaint was probably because he had been distracted by the fact that his service had been extended by the respondent for a further six months beyond his 55th birthday when he had been due to retire. The claimant did not advance any other reason why he had not presented his originating claim to the Office of the Tribunals until 6 December 2002.
3. The Relevant Law
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 came into operation on 1 July 2000 and gives part-time workers the right in principle not to be treated less favourably than full-time workers of the same employer who work under the same type of employment contract.
Regulation 8 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 (referred to hereafter as the “Part Time Workers Regulations) provides that:-
8(2) “Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months (or, in a case to which regulation 13 applies, six months) beginning with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them.
8(3) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”
In exercising this discretion, the tribunal should consider the prejudice which each party would suffer as a result of granting or refusing the extension and to all the circumstances which include:-
The length and reason for delay.
The extent which the cogency of the evidence is likely to be affected by the delay.
The extent to which the parties sued co-operated with any request for information.
The promptness with which the claimant acted when he knew of the facts giving rise to the cause of action.
Steps taken by the claimant to obtain appropriate legal advice when he knew of the possibility of taking action.
The time limit for presenting a complaint under Regulation 30 of the Working Time Regulations (Northern Ireland) 1998 (referred to hereinafter as the “Working Time Regulations) is expressed in almost identical terms as the Part Time Workers Regulations. Except Regulation 30(2) specifies that if the claim is not presented within the specified time limit, the complaint may be considered if it is presented “within such further period as the 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, or as the case may be six, months. The tribunal must consider whether it was reasonably feasible for a claimant to have lodged proceedings within the specified time limit.”
Furthermore, members of the Armed Forces must also make a complaint under the internal grievance procedure before lodging a complaint with the industrial tribunal. Regulation 13 of the Part Time Workers Regulations:
13(3) “No complaint concerning the service of any person as a member of the armed forces may be presented to an employment tribunal under regulation [8] unless—
(a) that person has made a complaint in respect of the same matter to an officer under the service redress procedures, and
(b) that complaint has not been withdrawn.
13(5) Where a complaint of the kind referred to in paragraph (3) is presented to an employment tribunal, the service redress procedures may continue after the complaint is presented.
13((6) In this regulation, “the service redress procedures” means the procedures, excluding those which relate to the making of a report to Her Majesty, referred to in section 180 of the Army Act 1955….”
Regulation 37 of the Working Time Regulations is expressed in the same terms.
4. Conclusions
A tribunal can only consider a complaint where a member of the armed forces has first raised a complaint about the same matter under the service redress procedures. The claimant had done so only in respect of the period from 1 February 1998 until 30 April 2001. On 1 May 2001, the claimant's working arrangements were varied in that he was working part time hours rather than on a full time basis. The tribunal's view is that on a proper construction of the legislation, the claimant would have been required to make separate applications under the redress of complaints procedure both prior to 1 February 1998 and after 30 April 2001 if he wished to pursue a complaint before the tribunal in respect of those periods in which he worked part time hours. He did not do this and therefore the tribunal concludes that it can only consider the claimant's complaint which related to the period from 1 February 1998 until 30 April 2001 when he worked full time hours under part time (HSPT) terms and conditions of employment.
Accordingly, the originating claim form, which was presented by the claimant on 6 December 2002, was lodged outside the six month time limit prescribed by both the Part-Time Workers Regulations and the Working Time Regulations.
The tribunal considered whether it should exercise its discretion under the relevant provisions. The onus is on the claimant to adduce evidence to satisfy the tribunal that it should exercise its discretion under the relevant provisions to extend the period for presenting the claim. The tribunal does not consider that the claimant has discharged this burden. The tribunal considers that it was reasonably feasible for the claimant to have lodged his claim under the Working Time Regulations within the six month time limit and therefore in exercising its discretion the tribunal does not extend the period for presenting a claim under the Working Time Regulations.
The tribunal was satisfied that reason advanced by the claimant for the delay in lodging his complaint to the industrial tribunal was not such that it should exercise its discretion to extend the time for lodging the complaint prescribed by the Part Time Workers Regulations. The tribunal took into account that the claimant was advised by the respondent in its letter to him of 8 November 2001 that its rejection of his application for redress of complaint did not affect his access to an industrial tribunal. In considering the likely prejudice to each of the parties the tribunal took into account that in all likelihood the claimant would benefit in the event of any future change which there may be in the respondent's policy in relation to those persons employed under HSPT terms and conditions.
Therefore the tribunal in exercising its discretion under the relevant statutory provisions does not extend the period for presenting the claim and decides that the tribunal does not have jurisdiction under either the Working Time Regulations or the Part-time Workers Regulations to entertain the claimant's claim. The claim is therefore dismissed.
Chairman:
Date and place of hearing: 13 December 2006, Belfast
Date decision recorded in register and issued to parties:
