Gallagher v British Telecommunications plc [2010] NIIT 05718

THE INDUSTRIAL TRIBUNALS

CASE REF: 5718/09

CLAIMANT: Sharon Gallagher

RESPONDENTS: 1. British Telecommunications plc

2. Gerard Love

DECISION ON A PRE-HEARING REVIEW

(A) The claimant’s claims against the first respondent (“BT”) must be dismissed because they were not presented within the relevant primary time-limits and it is not just and equitable, pursuant to Article 76(5) of the Sex Discrimination (Northern Ireland) Order 1976 (“the 1976 Order”), nevertheless to consider the relevant claims.

(B) The claimant’s claims against the second respondent (“Mr Love”) must be dismissed because the proceedings were not presented within the relevant primary time-limits and it is not just and equitable, pursuant to Article 76(5) of the 1976 Order, nevertheless to consider the relevant claims.

Constitution of Tribunal:

Chairman (sitting alone): Mr Paul Buggy

Appearances:

The claimant was represented by Mr Seymour Major.

BT was represented by Mr D Hopkins, Barrister-at-Law, instructed by Napier and Sons Solicitors.

Mr Love was self-represented.

REASONS

1. As everyone knows, BT is a telecommunications company. It operates a call centre in Enniskillen, which deals with billing and other enquiries from customers. The claimant was employed in that call centre from 29 March 2005 until 5 August 2008. Throughout most of her period of employment with BT, she worked as a Customer Sales Adviser, answering queries from customers, although she worked for a period as a coach, assisting other members of staff.

2. The claimant’s employment with BT came to an end because she was unfairly dismissed.

3. The claimant has brought two separate sets of proceedings against BT in connection with her employment:

(1) In the first set of proceedings (case 1395/08, which I refer t below as “the 2008 proceedings”), the claimant made a claim of unfair dismissal against BT and she also made various claims under the Disability Discrimination Act 1995 (“the 1995 Act”), both against BT and against Majella Duggan, who is a senior manager within BT. (The unfair dismissal claim was successful and the 1995 Order claims were dismissed).

(2) In the present proceedings, (“the 2009 proceedings”), the claimant makes claims under the Sex Discrimination (Northern Ireland) Order 1976 (“the 1976 Order”) against BT and against Mr Love (who, for a time, was the claimant’s immediate line manager). Against both respondents, the claims are claims of detrimental treatment which (according to the claimant) constitutes sex discrimination, harassment and/or victimisation discrimination. Each claim, against each of the respondents, is based on alleged acts and omissions on the part of Mr Love.

4. It is agreed between the parties that none of the relevant claims has been brought within the primary time limit which is set out in Article 76(1) of the 1976 Order. Accordingly, in relation to each claim, and in respect of each respondent, the only live issue between the parties, and the only issue which I have had to determine in the course of this Pre-Hearing Review, is whether the claimant meets the requirements of the secondary time-limit which is set out in Article 76(5) of the 1976 Order.

The relevant statutory provisions in respect of time-limits

5. The primary time-limit is provided for in Article 76(1) of the 1976 Order, which provides as follows:

“An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of –

(a) the period of three months beginning when the act complained of was done …”

6. The secondary time-limit is provided for in Articles 76(5), in the following terms:

“(5) A … tribunal may nevertheless 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”.

7. Paragraph (6) of Article 76 provides that, for the purposes of that Article, any act extending over a period is to be treated as done at the end of that period.

The acts complained of

8. The relevant alleged acts and omissions of Mr Love, which are the subject of complaint in these proceedings, consist of the following:

(1) Various acts and omissions which allegedly were carried out between May 2007 and a date in October 2007. (Mr Love was the claimant’s line manager from May 2007 until October 2007).

(2) In mid-October 2007, just after he had ceased to be her line manager,

Mr Love refused to allocate Christmas leave to the claimant.

(3) In the summer of 2008, when, on various occasions, Mr Love encountered the claimant, he “strutted and laughed”.

A continuous state of affairs?

9. I reject the suggestion that all of the relevant acts can be regarded as a group of acts which, taken together, constitute a continuous state of affairs.

10. For present purposes, I am, however, prepared to regard the acts allegedly carried out by Mr Love throughout the period when he was the claimant’s line manager (from May 2007 until October 2007), along with an allegation in relation to the way a leave application was dealt with in October 2007, as together constituting a continuous state of affairs. In my view, the alleged subsequent misbehaviour on the part of Mr Love, during the summer of 2008, when he allegedly “strutted and laughed” (upon meeting the claimant by chance), cannot properly be grouped with the group of earlier acts, so as to constitute a continuous state of affairs. It seems to me to be clear that each “laughing and strutting” incident was a separate and distinct incident, which was not part of a continuing situation.

Delay?

11. All the relevant incidents, apart from the “strutting and laughing” incidents, occurred in the summer and autumn of 2007. The “strutting and laughing” acts occurred during the summer of 2008.

12. However, until February 2009, the claimant did not notify either of the respondents that she wanted to make tribunal claims in respect of the acts which constitute the subject-matter of the present proceedings. (On 15 February 2009, the claimant first made it clear, within the course of a 2008 proceedings Case Management Discussion, that she wanted to make tribunal claims of sex discrimination, in

respect of certain allegedly sexually discriminatory acts allegedly carried out by Mr Love (as well as continuing to pursue claims in respect of the acts which were already the subject of complaint pursuant to the 2008 proceedings).

13. Ultimately, in light of discussion which occurred during the course of a subsequent case 1395/08 Case Management Discussion, the claimant decided not to pursue her application for amendment of the 2008 proceedings, and decided that she would instead pursue the relevant allegations in the course of entirely new proceedings, (the present proceedings). Shortly thereafter, on 26 May 2009, the present proceedings were presented.

14. In considering the period of delay, I have ignored any period after mid-February 2009 (the date when the claimant first made it clear that she intended to litigate in the industrial tribunal in respect of the claims which constitute the current proceedings).

15. Accordingly, the relevant period of delay, in respect of the “strutting and laughing” allegations, is a period of a few months. In respect of all of the other allegations it is a period in excess of 16 months.

16. So the position is as follows:

(1) A significant period elapsed, between the dates on which the “strutting and laughing” acts were allegedly carried out and mid-February 2009.

(2) A substantial period elapsed, between the date on which each of the other acts allegedly occurred and mid-February 2009.

When did each respondents first know that the relevant allegations were being made?

17. Within those periods of delay, when did each respondent become aware of the fact that the relevant allegations (the allegations which constitute the subject-matter of the present proceedings) were being made?

18. On the basis of the evidence which I have received in this case, I am satisfied that, throughout the period up to 15 February 2009, the two internal grievance processes were the only sources of information which BT had in respect of the relevant allegations.

19. The first grievance process (which, for convenience, is referred to as “Grievance A”) was begun by the claimant (at Stage 1) in July 2008, was pursued (at Stage 2) in October 2008, and was completed (at “Higher Level Review” stage) in January 2009.

20. Having carefully reviewed the papers in relation to Grievance A, and having carefully considered the claimant’s oral testimony in relation to Grievance A, I am

satisfied that the allegations which constitute the subject-matter of the present proceedings were not explicitly or implicitly part of the subject-matter of the grievances which were being pursued by the claimant in the course of Grievance A.

21. The second of the grievance processes which the claimant pursued within BT is (again for the sake of convenience) referred to below as “Grievance B”. Grievance B began in July 2008, was first adjudicated upon (at Stage 1) in October 2008, was next adjudicated upon (at Stage 2) in February 2009, and was completed only in March 2009 (at “High Level Review” stage).

22. I have carefully looked at the claimant’s initial statement of grievance in Grievance B. It seems to me that it is difficult to read that statement as incorporating a complaint of harassment under the 1976 order, or as incorporating a complaint of sex discrimination under the 1976 Order, or as incorporating a complaint of victimisation discrimination under the 1976 Order. However, the statement does include criticisms of Mr Love’s behaviour, which is categorised, in that statement, as being “very hostile and unsupportive”. The statement also refers to the claimant feeling “aggressiveness and non communication” from Mr Love. At the fact-finding meeting at Stage 1 of Grievance B, the claimant referred to Mr Love’s alleged bullying and harassment and hostile behaviour. However, during the course of that meeting, the thrust of the claimant’s complaints related to the bullying aspects of the alleged misbehaviour, rather than any sexist dimension to it. The assertion that the relevant alleged misbehaviour was sexist seems to be an assertion which was first made by BT’s decision-maker, Ms Angela Melville, in her 3 October 2008 outcome letter, when she was explaining while she had made the determinations which she did make, in the context of Stage 1 of Grievance B.

23. I am satisfied that BT only became aware during the summer of 2008 that the relevant allegations were being made against Mr Love.

24. On the basis of the oral testimony of Mr Love, I am satisfied that he first became aware that the relevant allegations were being made against him in the course of a meeting with Management within BT in August 2008.

The legal principles

25. The primary time-limit for presenting a claim, of discrimination or of harassment, under the 1976 Order, is generally only three months, as distinct from the primary time-limit of three years in personal injury cases. I have to have regard to the consideration that the legislator has prescribed very short primary time-limits, which indicates a legislative policy that discrimination proceedings should be begun quickly.

26. According to settled case law, it is clear that, in considering whether to allow a ‘just and equitable’ extension to a discrimination case time-limit, it is appropriate to consider the criteria which are applied in the context of deciding upon extensions of time in respect of personal injury cases. In Sadler, the House of Lords considered some fundamental issues regarding the purpose of the ‘discretionary exclusion of time-limit for actions in respect of personal injury or death’ which is provided for in Section 33 of the Limitation Act 1980.

27. Section 33(1) makes reference to the provisions of that Act which contain the primary time-limits, and then provides as follows:-

“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -

(a) the provisions of [the relevant primary time-limits] prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this sub-section would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to that action, or shall not apply to any specified cause of action to which the action relates”.

28. Accordingly, the effect of Section 33(1) is that a court has a discretionary power to disapply a relevant primary limitation time-limit if, but only if, it is satisfied that it would be ‘equitable’ to do so (having regard to the degree to which the relevant primary time-limit prejudices the plaintiff and the degree to which the disapplication of the time-limit would prejudice the defendant).

29. Subsection (3) of section 33 provides as follows:-

“(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent that if the action had been brought within the [primary time-limits];

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, take by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

30. Paragraph 9 of the House of Lords judgment in Sadler shows that the exercise of the discretion under Section 33 of the 1980 Act is not reserved for the ‘occasional hard case’; not is it to be reserved for cases of an unusual nature; and that, instead, the relevant provisions give courts a wider general discretion to extend time.

31. At paragraph 32 of Sadler, Lord Bingham discusses the section 33(1) disapplication power in the following terms:-

“In resolving an application under section 33 the court must make a decision of which the inevitable effect is either to deprive the defendant of an accrued statute-barred defence or to stifle the claimant’s action against the tortfeasor who caused his personal injuries. In choosing between these outcomes the court must be guided by what appears to it to be equitable, which I take to mean no more (but also no less) than fair, and it must have regard to all the circumstances of the case and in particular the six matters listed in sub-section (3).”

32. As Lord Carswell pointed out at paragraph 53 of Sadler, the prejudice to the claimant (by the operation of the primary limitation provisions) and the prejudice to the defendant (if they are disapplied) tend to be equal and opposite.

33. Against that background, the extent of any effect (of the delay) upon the particular defendant’s ability to defend is often regarded as being of paramount importance.

Conclusions

34. I think it will be helpful if I use the Limitation Act list of factors as a handy “checklist”. In the following paragraphs, I will note issues which arise in the context of that checklist.

35. The delay on the part of the claimant, in making the claims which constitute the basis for the present proceedings, was lengthy. The reason for that delay was not a good reason.

36. Having regard to the delay, the evidence adduced or likely to be adduced by each respondent is likely to be significantly less cogent than if each claim had been brought within the primary time-limit. In my view, the allegations about Mr Love’s conduct are highly fact-sensitive, and a proper defence of those allegations would necessarily involve detailed consideration of the specific context in which things were said or done, of the precise details of what was said and done, and of the tone in which things were said and done. All of those matter are matter in respect of which Mr Love and the claimant’s personal recollections are likely to be of crucial importance; and documentary evidence is not likely to be of much assistance.

37. The policy of the Employment (Northern Ireland) Order 2003 is to encourage employees to address discrimination-related grievances with their own employer first, before coming to present their claims to a tribunal. Against that background, in considering whether or not to extend the time-limits, I am entitled and obliged to take account of the fact that BT did not process Grievance B promptly. Instead, the entire internal BT grievance process in respect of Grievance B took from July 2008 until March 2009. Therefore, in considering whether to extend the time-limits in relations to the claims against BT, I have taken full account of the delay in processing Grievance B.

38. However, the policy of the 2003 Order does not encompass any principle that an employee has to pursue her grievance with a colleague, before commencing 1976 Order discrimination or harassment claims against that colleague. Accordingly, in

considering whether or not to extend the time-limits in relation to the claims against Mr Love, I have had regard to the entirety of the period of delay, right up to February 2009.

39. Apart from the relatively slow processing of Grievance B, the conduct of BT after the cause of action arose is not a ground which provides any basis for any argument against an extension of the time-limit. The conduct of Mr Love after the cause of action arose is not a ground which provides any basis for any argument against an extension of the time-limit.

40. According to the claimant, an important reason for the delay was her poor state of health during the relevant period. I accept, that throughout that period, the claimant did suffer from ill-health. However, that ill-health did not make her unfit to commence the 2009 legal proceedings. Indeed, throughout the relevant period, she pursued the 2008 proceedings, acting as her own representative, and she performed that role very competently.

41. The claimant says that an important reason for the delay was her alleged belief that, once she had begun the 2008 proceedings, she would be free, in due course, at her own discretion, and without seeking permission from anybody, to add to the claims which constituted the subject-matter of the 2008 proceedings.

42. In my view, she did hold those beliefs, and it was not unreasonable for her to hold such beliefs. I think that many non-lawyers would think that, once you have begun any type of proceedings, you can add to them, or you can modify their subject-matter, in whatever way you choose, without seeking permission from anybody.

43. Mr Hopkins, on behalf of the respondent, suggested that the claimant should have promptly sought advice, from a skilled source, to check whether permission to amend the claim form was required. (She clearly did not promptly seek any such advice). However, I have concluded that the claimant did not act unreasonably in failing to promptly seek relevant advice. In my view, she genuinely did not know,

and she was not unreasonable in not knowing, that there was an issue as to whether or not permission might be a pre-condition for any future amendment to the claim form which she might wish to make.

44. However, I am satisfied that the claimant’s ignorance as to the relevant procedural law (the requirement to be given permission to amend a claim form, and the pivotal role of time-limits in the context of any application for leave to amend the claim form) were not significant factors in the claimant’s failure to promptly present the claims which constitute the subject-matter of the present proceedings.

45. In reality, the making of the relevant allegations, and the pursuit of the 1976 Order discrimination and harassment allegations in the form of the present proceedings, was a reaction to comments which had been made by BT at Stage 2 of Grievance B, on 3 October 2008. In her adjudication at that point, in respect of Grievance B, the BT grievance decision-maker criticised the allegedly sexist behaviour of Mr Love. Up to that point, the claimant had never focused on gender bias as a cause for complaint. Having carefully noted the oral testimony of the claimant, and having had regard to the history of both Grievance A and Grievance B, I am satisfied that the claimant chose to focus solely upon alleged disability discrimination until the issue relating to allegedly sexist behaviour on the part of Mr Love was raised by Ms Melville, on behalf BT, in October 2008.

46. All the way from the summer and autumn of 2007 until the autumn of 2008, Mr Love’s allegedly sexist behaviour was not raised in the course of any grievance, and the main reason for that omission was the claimant’s view as to where tactical advantage lay. From the time when the relevant alleged acts and omissions occurred (the acts and omissions which constitute the subject-matter of the present proceedings), the claimant had enough information to know whether or not each relevant act or omission of Mr Love was one which might be capable of providing a proper basis for a claim for compensation under the 1976 Order. She did not need to wait for any relevant evidential revelations to occur during the course of the Grievance Process; and, indeed, no such revelations did occur during the course of that process.

47. Until quite a late stage of the 2008 proceedings, and until quite a late stage of the present proceedings, the claimant did not seek any detailed advice, from a lawyer or other skilled adviser. However, claimants are routinely told that they can self-represent in the industrial tribunals. Accordingly, in the context of this case, the claimant cannot be criticised for any failure on her part to seek skilled advice at an early stage.

48. In deciding that it is not just and equitable to extend the relevant primary time-limits, I have had regard to all of the matters which I have set out at paragraphs 26-47 above. However, in arriving at my ultimate determination, I have paid particular attention to the length of the delay, and to the effect which that delay will have had upon the cogency of the evidence which BT would be likely to adduce, and to the effect of that delay upon the evidence which Mr Love would be likely to adduce.

The course of the proceedings

49. During the course of the hearing, there was some dispute between the parties as to whether or not there ever had been an adjudication by BT, at Higher Level Review level, in respect of Grievance A. However, at the end of the hearing, after all the evidence had been given, and after all the submissions had been made, the claimant was able to resolve that factual dispute, by providing a copy of the Higher Level Review correspondence between the claimant and BT, in respect of Grievance A.

50. In arriving at my Decision in this case, I have taken full account both of the fact that the relevant Higher Level Review documentation did exist, and of the content of that documentation. I note that the parties were content that I should do so. (I offered both parties the possibility of re-convening the hearing for the purpose of considering any representations which any party might wish to make in connection with the relevant documentation. As an alternative, I offered the parties the possibility of making written representations about these matters. Quite understandably, in view of the appropriateness of industrial tribunal litigation being pursued in a proportionate manner, none of the parties sought to take advantage of those invitations).

51. For the avoidance of any doubt, I wish to make it clear that, if the claimant had chosen to persist with the application which she proposed to make in February 2009 (by applying to amend her claim form so as to include the subject-matter of the present proceedings as additional claims within the 2008 proceedings), the outcome of her application would have been the same, for the reasons set out and referred to at paragraph 48 above. (Whether the 1976 order claims were pursued as additional claims alongside Disability Discrimination Act claims, or whether they were pursued in fresh proceedings, the issues regarding delay and cogency would continue to be highly significant issues).

Chairman:

Date and place of hearing: 18 and 23 November 2010, Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gallagher v British Telecommunications plc [2010] NIIT 05718_09IT (07 February 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/05718_09IT.html Cite as: [2010] NIIT 05718_09IT, [2010] NIIT 5718_9IT

Industrial Tribunals Northern Ireland Decisions