Orr v Movilla House Nursing Home [2011] NIIT 01492

THE INDUSTRIAL TRIBUNALS

CASE REF: 1492/11

CLAIMANT: Angela Orr

RESPONDENT: Movilla House Nursing Home

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the time for lodging the claims of unfair dismissal, breach of contract and disability discrimination are extended to 30 June 2011 for the reasons set out in this decision.

Constitution of Tribunal:

Vice President (sitting alone): Mr N Kelly

Appearances:

The claimant was represented by Mr M Robinson, Barrister-at-Law, instructed by Campbell Fitzpatrick, Solicitors.

The respondent was represented by Mr N Philips, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Background

1. The claimant had been employed as Nursing Sister by the respondent from 2 October 2006 to 4 March 2011 when she was dismissed.

2. The correct title of the respondent will be determined at the substantive hearing.

3. The claimant lodged a claim form in the industrial tribunal, alleging unfair dismissal, breach of contract and disability discrimination, on 30 June 2011.

4. The claims were therefore clearly outside the statutory time-limits of three months for lodging each of those claims, by 26 days.

5. At a Case Management Discussion on 20 September 2011, both parties agreed that there was potentially a succinct knockout point in relation to time-limitation and this issue was listed for a pre-hearing review to be heard on 7 November 2011.

6. At the pre-hearing review the claimant and Mr Stephen McSherry, a full-time RCN official, gave evidence. Both parties made legal submissions. No medical witnesses were called to give oral evidence but the parties referred to a General Practitioner’s report of 7 October 2011 and to an Occupational Health report of 8 February 2011.

Relevant law

7. This case encompasses the two separate and distinct tests for extending time in employment tribunal cases; the ‘reasonably practicable’ test in relation to the unfair dismissal and breach of contract claims and the ‘just and equitable’ test in relation to the disability discrimination claim.

Reasonably practicable

8. The statutory provisions in relation to the extension of the time-limit for making a claim of unfair dismissal and a claim of breach of contract are in similar terms. In relation to unfair dismissal, Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 provides:-

“Subject to Paragraph (3) an industrial tribunal shall not consider a complaint under this Article unless it was presented to the tribunal –

(a) before the end of the period of three months beginning with the effective day of termination; or

(b) 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 months.”

9. The recognised textbook in this area, Harvey on Industrial Relations and Employment Law, deals with this topic in Volume 3, Section PI at Paragraph 187 onwards. It points out that there are two limbs to this statutory test. First, the employee must show that it was not reasonably practicable to present his claim in time and the burden of proof rests upon the employee. Second, the tribunal must be satisfied that the further time within which the claim was in fact presented was reasonable.

10. In Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, May LJ stated:-

“We think that one can say that to construe the words ‘reasonably practicable’ as the equivalent of ‘reasonable’ is to take a view that it is too favourable to the employee. On the other hand, ‘reasonably practicable’ means more than merely what is reasonably capable physically of being done – different, for instance, from its construction in the context of the legislation relating to factories. Compare Marshall v Gotham Company Ltd [1954] AC 360, HL. In the context of which the words are used in the 1978 Consolidation Act, however ineptly as we think, they mean something between the two. Perhaps to read the word ‘practicable’ as the equivalent of ‘feasible’ as Sir John Brightman did in Singh v Post Office [1973] ICR 437 and to ask colloquially and untrammelled by too much legal logic – ‘was it reasonably feasible to present the complaint to the employment tribunal within the relevant three months’ – is the best approach to the correct application for the relevant sub-section.”

11. In Shultz v Esso Petroleum Company Ltd [1999] IRLR 488, the Court of Appeal considered a case in which an extension of time had been sought on the basis of a depressive illness. The Court stated:-

“Thus, when I accept Mr Wynter’s general proposition that in all cases where illness is relied on, the tribunal must bear in mind and assess it effects in relation to the overall limitation period of three months, I do not accept the thrust of his third submission, that a period of disabling illness should be given similar weight in whatever part of the period of limitation it falls. Plainly the approach should vary according to whether it falls in the earlier weeks or the far more critical later weeks leading up to the expiry of the period of limitation. But in terms of the test to be applied, it may make all the difference between practicability and reasonable practicability in relation to the period as a whole. In my view, that was the position in this unusual case. The way in which the IT expressed its decision indicates to me that it had its focus wrong and in the light of the primary findings of fact which it made, misdirected itself in its approach to the question of reasonably practicable.”

12. In relation to the second limb of the statutory test, the EAT in Northumberland County Council v Thompson [EAT/209/07] held that an employment tribunal, in deciding that a six month delay after the expiry of the time-limit, was reasonable, merely looked at factors such as the claimant’s continuing ill-health and misleading advice by her union, without examining her actual state of knowledge in the period following the expiry of the time-limit, and whether any lack of knowledge was caused by those factors. The EAT held that this was a serious omission vitiating the decision of reasonableness and the case was remitted for a complete re-hearing.

13. In relation to the reasonably practicable test, the general rule is that if a professional adviser, such as a solicitor or a trade union, is negligent or gives wrongful advice which leads to a delay in lodging a claim, the claimant cannot get an extension of time on that ground alone. In Dedman v British Building & Engineering Appliances Ltd [1973] IRLR 379, Lord Denning stated:-

“If a man engages skilled advisers to act for him – and they mistake the time-limit and present the complaint too late – he is out. His remedy is against them.”

Just and equitable

14. The tribunal has power to extend the time for lodging a complaint of disability discrimination if ‘in all the circumstances of the case, it considers that it is just and equitable to do so’. That is a much wider discretion than the discretion which has been described above under the ‘reasonably practicable’ test. The tribunal is entitled to take into account anything which it judges to be relevant and, in general, should look at the list of factors set out in British Coal Corporation v Keeble [1997] IRLR 336.

15. These factors are:-

“(a) the length of and reasons 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 party sued had co-operated with any requests for information;

(d) the promptness with which the complainant acted once he or she knew of the facts giving rise to the cause of action and the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.”

16. The onus is on the claimant to convince the tribunal that it is just and equitable to extend time and an extension of time is the exception rather than the rule.

Relevant findings of fact

17. The time for lodging the claims expired on 4 June 2011. The claims, lodged on 30 June 2011, were therefore 26 days late.

18. At all relevant times, the claimant suffered from three medical conditions:-

(i) prolapsed discs in her back and degenerative changes in her neck;

(ii) depression; and

(iii) palindronic rheumatoid arthritis (‘PRA’).

19. The claimant was supposed to receive six monthly epidural injections for her back/ neck condition and wore an analgesic patch for severe chronic pain.

20. The claimant was on anti-depressants and the dosage had been increased at various times, most recently in July 2011.

21. The claimant had been prescribed Plaquenil for PRA. Following a low white blood cell count, she had been advised, on 22 April 2011, to stop taking that drug and sometime later to start taking it again at a lower dose. She then discontinued it of her own volition. All of this caused a flare-up in her PRA.

22. The claimant had suffered a number of bereavements of close family members. On 16 August 2009, her mother had died; on 14 October 2010 her aunt had died; on 17 February 2010 her mother-in-law, with whom she had been particularly close, died; on 23 May 2010 her uncle died. The claimant was dismissed some two weeks after her mother-in-law’s death.

23. Between 4 March 2011 (date of dismissal) and 30 June 2011 (date of lodgement) the claimant was suffering from depression, a flare-up of PRA following the decision to stop, re-start and eventually stop taking Plaquenil and her ongoing chronic back/neck condition. Her evidence to the tribunal was that she had been ‘bedridden’ during this period and had been unable to manage her affairs. She had required help from her sister, her daughter and her husband to deal with ordinary day-to-day issues, such as personal hygiene. During this period she had attended necessary medical appointments on various dates, 19 April 2011, 19 May 2011, 3 May 2011 and 31 May 2011. This had been done with the help of her family. She had also attended, part only, of the funeral service for her uncle before returning to bed. The claimant’s evidence on this point was clear and, in my view, honest.

24. Between 2 – 30 June 2011, her medical condition had improved to the extent that she could spend up to an hour out of bed each day. She was still unable to attend to all the matters with which she had previously dealt. She still had difficulty sleeping and in concentrating.

25. After her unsuccessful internal appeal on 23 March 2011 against her dismissal, the claimant’s trade union representative, a part-time RCN official, Joanne Stevenson, told the claimant that the papers relating to her case would be considered by a more senior full-time RCN official. That full-time RCN official would take legal advice, if necessary, and the claimant would then be contacted. Ms Stevenson delivered the relevant papers to the RCN’s Belfast Office and gave them to a member of the administrative staff. Following an error on the part of the administrative staff, those papers were not given to the full-time official and nothing was done with them.

26. The claimant next telephoned Ms Stevenson on 13 June 2011 to ask what was happening in relation to her case. Shortly afterwards, the claimant spoke to a more senior RCN official, Mr Stephen McSherry on 17 June 2011. Mr McSherry retrieved the papers and examined them. Mr McSherry telephoned the claimant on Friday 24 June 2011 and asked if her if she could attend the offices of Campbell Fitzpatrick, Solicitors, on Monday morning 27 June 2011. The claim form was lodged three days later.

27. The General Practitioner’s report obtained by the claimant did not specifically state that the claimant was substantially bedridden for approximately six weeks from 22 April 2011 to 3 June 2011 and was slightly better from 3 June 2011 onwards. However, it does recount the difficulty that she had with her three medical conditions and concluded:-

“It is not unreasonable to assume that because of her decrease in mood and her increase in pain in the last six months that these symptoms could have had an effect on her ability to comply with the time-limits in relation to her unfair dismissal proceedings.”

It was put to the claimant in cross-examination that if she had been as incapacitated as she had indicated in her evidence, this would have been reflected more fully in the General Practitioner’s report. However, in my experience, General Practitioner’s reports obtained for tribunal proceedings are usually short and quite often miss the point. I have therefore concluded that it would be unfair to draw any adverse inferences from the failure of the GP to specifically refer to each and every part of the claimant’s evidence and to specifically corroborate each and every point that the claimant covered in her clear and convincing evidence to the tribunal.

28. The Occupational Health report of 8 February 2011 predates the relevant period and focused on the claimant’s ability to work. It is of little assistance in relation to the issue to be determined in this pre-hearing review.

29. The claimant’s diary recorded one entry on 13 April 2011 where the claimant stated that she had been unable to get out bed. There were no other entries in the relevant period from 4 March 2011 to 30 June 2011. However, I am not being asked to judge whether the claimant’s diary was conscientiously completed in respect of each day. Again, I do not feel able to draw any adverse inferences where an individual who was clearly ill, clearly suffering from bereavement and clearly upset at her dismissal, failed to record particular issues at every appropriate point in her personal diary.

30. The claimant accepted that she had attended various medical appointments during the period from 4 March 2011 to 30 June 2011. She had wanted to get better and had done so only with the help of her family. When challenged on this issue, she stated:-

“If I felt it was essential I could drag myself to do it.”

The claimant further said that if she had been advised that making a claim within three months was essential she would have possibly have tried to do so.

31. In cross-examination she stated, for the first time, that she had been advised by her General Practitioner to keep ‘going out to a minimum’ because of her low white blood cell count. That advice had not been specifically recorded in the brief General Practitioner’s report, but that report does refer to a drop in the white cell count and it does seem more likely than not that such advice was given to the claimant.

32. The claimant was asked whether the failure of the RCN to advise her had been the issue. She stated that it may have been; she did not know. She also stated that she was not sure why the time-limits had not been complied with. It is my view that at this point the claimant simply, and understandably, had become lost in the arguments about the two different statutory tests for extending time and was confused about what she was being asked.

Decision

Reasonably practicable

33. The claimant clearly suffered from multiple debilitating illnesses and the effect of various bereavements, most notably her bereavement in respect of her mother-in-law, in the period between her dismissal and the date of the lodgement of the claim. These matters would have affected her ability to concentrate and to seek and act on proper advice.

34. The first issue is whether it had been reasonably feasible for the claimant to have lodged her claim within three months from the date of her dismissal. The test is not whether it would have been physically possible for the claimant to have lodged her claim within this period. It is clearly the case that she would have been physically capable of lodging a claim, in the same way as she had been physically capable of attending various doctors and medical tests. However, I consider that the claimant has discharged the onus of proof placed upon her and has established, on the balance of probabilities, that it was not reasonably feasible for her to have complied with the three month time-limit on the basis of her health problems and the bereavements which together had impacted on her ability to deal with this matter.

35. The second issue is whether the further delay up to 30 June 2011 was reasonable. Again I conclude that the claimant has discharged the onus of proof in this respect and has established, on the balance of probabilities, that the delay was reasonable. As her health improved she moved quickly to pursue the matter with the RCN and thereafter things moved relatively quickly.

36. The administrative error within the RCN and the lack of proper advice on time-limits was a complicating factor. However, having heard the claimant, my conclusion is that her health/bereavement problems were the primary cause of the lateness of the claim. If it had not been for these problems, she would, in my view, have pursued the matter with the RCN at a much earlier stage and the claims would have been lodged in time.

37. Time is therefore extended to the date of lodgement of the claim in respect of the unfair dismissal and breach of contract claims.

Just and equitable

38. For the reasons set out above, I conclude that it would be just and equitable to extend time to 30 June 2011 for the disability discrimination claim.

39. The length of the delay was short – 26 days. The reasons were significant health reasons, coupled with bereavements. No prejudice would be caused to the respondent other than the obvious prejudice of having to defend the claims. The claimant moved quickly once her health began to improve in early June 2011 and there is no suggestion that she had in any way failed to co-operate with the litigation process.

Vice President:

Date and place of hearing: 7 November 2011, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Orr v Movilla House Nursing Home [2011] NIIT 01492_11IT (15 November 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/01492_11IT.html Cite as: [2011] NIIT 01492_11IT, [2011] NIIT 1492_11IT

Industrial Tribunals Northern Ireland Decisions