Gourley v Survitec Group Limited [2016] NIIT 02416

THE INDUSTRIAL TRIBUNALS

CASE REF: 2416/15

CLAIMANT: Ryan Gourley

RESPONDENT: Survitec Group Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

The claimant’s claim was out of time, having been presented to the tribunal outside the statutory time-limit. Further, the tribunal decided it was reasonably practicable for the claimant to have presented his claim in time. The tribunal therefore does not have jurisdiction to consider the claimant’s claim.

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Drennan QC

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr J Kelly, Solicitor, of Pinsent Masons LLP, Solicitors.

1.1 The claimant presented to the tribunal on 15 October 2015 a claim for `unfair dismissal from his employment with the respondent. The respondent presented a response to the tribunal on 17 November 2015 in which it denied liability for the claimant’s said claim but also raised certain time and/or jurisdictional issues.

1.2 At a Case Management Discussion on 8 December 2015, as set out in the Record of Proceedings, dated 8 December 2015, an Employment Judge directed a pre-hearing review to consider and determine the following issues:-

“(1) Whether the claimant’s claim of unfair dismissal was lodged within the statutory three month time-limit or not?

(2) If not, was it reasonably practicable in all the circumstances for the claimant to lodge his claim in time?

(3) If not, is it reasonable in all the circumstances for the tribunal to extend time for the lodging of his claim?”

1.3 Pursuant to a Notice of Hearing, dated 15 December 2015, a pre-hearing review was listed for hearing on 7 January 2016.

1.4 At this hearing, I heard oral evidence by the claimant and both the claimant and the respondent’s representative made oral submissions. The respondent’s representative also provided written submissions. At the outset of the hearing, I emphasised to the claimant it was not for me to determine the merits or otherwise of his said claim, but only to determine the issues directed, as set out above. In light of the said evidence and the said submissions I made the following findings of fact and determined the said issues in light of same, as set out later in this decision.

2.1 The Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) insofar as relevant and material provides as follows:-

“Article 145 :

(1) A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to Paragraph (3) an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal -

(a) before the end of the period of three months beginning with the effective date 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.

... .”

2.2 The claimant in his claim form stated that the dates of his employment were from 28 September 2007 to 17 July 2015; whereas the respondent stated, on its response form, the claimant was employed from 31 August 2009 until 15 June 2015. For the purposes of this hearing, the date of commencement of his employment, as set out in the claim form, was not relevant but, in view of the said date of termination, it was necessary for the tribunal to determine what was the effective date of termination. The claimant had a ‘standard’ contract of employment with the respondent, which, in particular, did not provide any terms for his employment to continue, following a decision to dismiss him, pending the outcome of any appeal of the said decision to dismiss. The claimant, following a disciplinary hearing was notified by letter, dated 15 June 2015, that the actions, the subject of the said disciplinary hearing, were acts of gross misconduct “the result of this is summarily [sic] dismissal from the company with immediate effect”. The claimant was handed the said letter on 15 June 2015, which also notified him of his right to appeal. The claimant appealed the said decision, which was heard on 26 June 2015. By letter, dated 17 July 2015, the claimant was informed by the respondent that his appeal had not been upheld and it also confirmed “the decision to terminate his employment (summarily dismissal) [sic]”. During the course of the evidence, it became apparent that although the claimant knew he had been dismissed by the respondent on 15 June 2015, and had appealed the said decision, he assumed, at all times material to this matter, the effective date of termination, for the purposes of bringing a claim of unfair dismissal, did not arise until he was informed of the outcome of the appeal by the respondent. Unfortunately, in the absence of any relevant term in the contract of employment, this assumption of the claimant was not correct and, in particular, not in accordance with his contract of employment. Of course, if the appeal had been successful, he would have been reinstated by the respondent (see further Paragraph 3.2 and 3.3 of this decision).

2.3 In the circumstances, having been handed the said letter on 15 June 2015, I was therefore satisfied the effective date of termination was 15 June 2015. Since the claim form was not presented until 15 October 2015, the claimant was therefore out of time.

2.4 The claimant, at all times material to this matter, was fully aware he had the right to bring a claim of unfair dismissal, pursuant to the 1996 Order. Further, he accepted, in evidence, that at or about the time of his dismissal on 15 June 2015, he found out, from an internet search, of the three month time-limit; but he assumed, as referred to above, time did not run until he had been informed of the outcome of the appeal. This illustrates very clearly the dangers of the internet for the individual claimant and the difficulties it can give rise to for a claimant, who does not fully understand what is set out on such a search. Unfortunately, as set out later, the claimant, although he knew of the right to make such a claim and the existence of such a time-limit, took no steps to make relevant enquiries in relation to same.

2.5 Prior to his dismissal, at or about the time of the disciplinary hearing, the claimant also made contact with the Labour Relations Agency; but he contended this was to do with issues about the disciplinary hearing itself; and not what were his rights if he was dismissed following such a hearing. At the time of his dismissal, the claimant had an unrelated personal injury claim against a third party, who was not his employer. He had instructed a well-known firm of solicitors in Belfast, in connection with his personal injury claim. After his said dismissal on 15 June 2015; he spoke to the solicitor, who had carriage of his personal injury claim, to ascertain whether he and/or the said firm of solicitors could act for him in his said dismissal and the cost of doing so. The solicitor indicated to the claimant he, personally, could not act but another solicitor in the firm could and he outlined the likely hourly rate for doing so. The claimant could not afford the said rate quoted; and, as a consequence, the matter went no further. In particular, the claimant emphasised the solicitor gave no advice, nor was he asked to do so, about the claimant’s claim of unfair dismissal or the time-limits for bringing such a claim.

2.6 The claimant, following what he had been told by the solicitor, then took no further action about his claim and, in particular, following receipt of the letter of 17 July 2015 informing him of his unsuccessful appeal. In particular, at no time did he again contact the Labour Relations Agency, whose services he knew were free. Indeed, as he acknowledged fairly in evidence, he had decided not to take any further action as he felt he could not afford to do so and he would just ‘let it go’; although he still believed he had been unfairly dismissed by the respondent.

2.7 This continued to be his position until, ‘by chance’, as he put it in evidence, at some date in or about late September 2015, the claimant’s father at a community event at the Wolfhill Centre Belfast was made aware of a Mr A McCann, who was in the Vine Centre in the Crumlin Road, Belfast,. His father was told Mr McCann might be able to help the claimant. The claimant was unable to see Mr McCann until mid-October 2015, as Mr McCann was on holiday for a period and, prior to that, the claimant was heavily involved in obtaining his HGV Driver’s Licence. The claimant saw Mr McCann shortly before he presented his claim to the tribunal on 15 October 2015. Indeed, Mr McCann assisted the claimant in drafting his said claim to the tribunal. By this time, as set out above, the claim was out of time.

3.1 Since the claimant’s claim was out of time, it was therefore necessary for him to apply for an extension of time, pursuant to Article 145 of the 1996 Order, as set out above.

The statutory test in Article 145(2) of the 1996 Order involves two distinct questions:-

“(a) Was it reasonably practicable to present the complaint in time?

(b) If it was not, did the claimant bring the complaint within a further reasonable period?”

It has long been established it is for the claimant to prove that it was not reasonably practicable to bring the claim in time and it is a question of fact for the tribunal to decide. In this context, it always has to be remembered that the test for an extension of time which applies under the discrimination legislation potentially affords a tribunal a far wider discretion than in the case of the reasonably practicable extension set out in Article 145(2) of the 1996 Order (see further Hutchison v Westward Television Ltd [1977] IRLR 69 and British Coal v Keeble [1997] IRLR 336). Under discrimination legislation a test of ‘just and equitable’ applies.

In Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, May LJ stated, at Page 125:-

“To construe the words ‘reasonably practicable’ as the equivalent of ‘reasonable’ is to take a view that is too favourable to the employee. On the other hand ‘reasonably practicable’ means more than merely what is reasonably capable physically of being done … In the context in 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’ … and to ask colloquially and untrammelled by too much legal logic - ‘was it reasonably feasible to present the complaint to the [industrial] tribunal within the relevant three months?’ - is the best approach to the correct application of the relevant sub-section.”

May LJ, in the course of his judgment set out a number of relevant factors but emphasised they could not be exhaustive, but stated they should a form an useful starting point and therefore the tribunal should consider, amongst other things:-

“(a) the manner in which, and the reason for which, the employee was dismissed, including any internal ‘conciliatory appeal procedure’;

(b) the substantial cause of the employee’s failure to comply with the statutory time-limit;

(c) whether he knew he had the right to complain that he had been unfairly dismissed;

(d) whether there had been any ‘misrepresentation’ about any relevant matter by the employer to the employee;

(e) whether the employee was advised at any material time and, if so, by whom; the extent of the advice is knowledge of the facts of the case and the advice given to the employee.”

In Wall’s Meat Company Ltd v Khan [1979] ICR 52, Brendon LJ gave the following guidance:-

“The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.”

Harvey on Industrial Relations and Employment Law, Volume 3, Section P1, has emphasised:-

“(207) So, whilst a claimant’s state of mind is to be taken into account, it is clear that his mere assertion of ignorance either as to the right to claim, the time-limit or the procedure for making the claim is not to be treated as conclusive … moreover, as the courts pointed out, the widespread public knowledge of unfair dismissal rights, it is all the time becoming more difficult to an employee to plead such ignorance successfully …

(208) [Given] if an employee is reasonably ignorant of the right to claim, it will inevitably follow that he will be unaware either of the correct mode of making a claim or the time within which it should be made. But if he knows in general about the availability of the remedy, he may still be ignorant of how and when to pursue it. In these circumstances, as Brendan LJ noted in the Walls Meat case, it may be difficult for him to satisfy a tribunal that he had behaved reasonably in not making suitable enquiries about these matters. Shaw LJ in the same case commented that ‘mere ignorance’ of the time-limit will not of itself amount to reasonable impracticability, save perhaps where the employee does not discover the existence of his right until a short time before the expiry of the time-limit. Pauler LJ took a similar view in Riley v Tesco Stores [1980] ICR 323 at 335.”

3.2 Prior to the commencement of the statutory disciplinary and dismissal procedures, pursuant to the Employment Rights (Northern Ireland) Order 2003 (‘the 2003 Order’) and the Employment Rights (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’), which came into operation on 3 April 2005, an employee, who delayed making an unfair dismissal claim whilst he invoked an internal disciplinary or dismissal procedure, normally found it difficult to get it accepted if, as a result of pursuing the internal process, he presented his claim to the tribunal out of time. Unless there was exceptional circumstances, the mere fact of invoking an internal appeal procedure was not generally regarded as sufficient to justify a finding that it was not reasonably practicable to present the claim in time. (In Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, where the Court of Appeal expressly approved the following guidance of Browne-Wilkinson J when he stated in Bodha v Hampshire Area Health Authority [1982] ICR 200:-

“There may be cases where the special facts (additional to the bare facts that there is an internal appeal pending) may persuade an Employment Tribunal, as question of fact, that it was not reasonably practicable to complain to the … tribunal within the time-limit. But we do not think that the mere fact of a pending internal appeal, by itself, is sufficient to justify a finding of fact that it was ‘reasonably practicable’ to present a complaint to the … tribunal.”

In Harvey on Industrial Relations and Employment Law, Volume 3, Section P1, it is stated:-

“(253.01) Whilst the mere fact of impending internal appeal will not of itself enable a claimant to claim that it was not reasonably practicable to present a claim in time, the question of the claimant’s state of knowledge of his or her rights and of the time-limit will nevertheless be relevant to consideration of whether he or she is entitled to the benefit of the escape clause. Thus in Marks & Spencer PLc v Williams-Ryan [2005] IRLR 562, the claimant’s belief that she had to conclude her internal appeal before starting tribunal proceedings, allied to a reasonable ignorance of the time-limit for bringing an unfair dismissal claim, enabled her to claim successfully that it was not reasonably practicable for her to make her claim in time.”

In John Lewis Partnership v Charman [UKEAT/0079/11], the claimant’s ignorance of the time-limit for claiming unfair dismissal was held by the Employment Appeal Tribunal where he pursued an internal appeal at the expense of presenting an unfair dismissal claim in time. The central issue to be determined was whether, given that he did not know of the time-limit - “he ought reasonably to have made enquiries about how to bring an employment tribunal claim”. If he had done so, it would have been inevitable, in the judgment of the Appeal Tribunal he would have been put on notice of the time-limits immediately following his dismissal. On the facts of the case, the EAT held it was not reasonable to have expected him to do so. Underhill J, as he then was, accepted that the claimant and/or his father knew in general terms there was a right to bring a claim for unfair dismissal to an industrial tribunal but he was ‘unquestionably’ unaware of the time-limits.

Underhill J in the course of his judgment after reviewing the authorities stated:-

“The starting point is that if an employee is reasonably ignorant of the relevant time-limits it cannot be said to be reasonably practicable for him to comply with them. Brandon LJ said this is terms in Walls Meat Co Ltd v Khan [1979] ICR 52 at Page 61 and the passage in question was explicitly endorsed by Lord Phillips in Williams-Ryan … In the present case the claimant was unquestionably ignorant of the time-limits, whether one considers his own knowledge or that of himself and his father. The question is whether that ignorance was reasonable. I would accept it would not be reasonable if he ought reasonably to have made enquiries about how to bring an employment tribunal claim, which would inevitably have put him on notice of the time-limits. The question thus comes down to whether the claimant should have made such enquiries immediately following his dismissal …

… .”

In Marks & Spencer, Lord Phillips said in terms that the proposition that “the existence of an internal right of appeal is of no relevance to the question of whether it is reasonably practicable to make a timely complaint to the Employment Tribunal” is not a principle of law but merely “a conclusion which will often be drawn when considering … the vital question of fact, namely whether the employee could reasonably be expected to be aware of the fact there was a time-limit for making a complaint to the Employment Tribunal …”.

Having concluded that he could not see, on the facts that it was unreasonable to defer investigating the position about a possible Employment Tribunal claim until the claimant knew the outcome of the appeal, Underhill J distinguished Bodha and Palmer, insofar as they might suggest a contrary conclusion, on the ground the claimants in those cases were represented by trade union officials who knew or must be taken to have known the time-limits and they had taken a deliberate decision to delay making a claim until the internal appeal process had been concluded, which decision bound the claimants and prevented them from saying it was reasonably practicable to have presented their claims in time.

In Dillon and Another v Todd and Another [2011] UKEAT, Underhill J, following his judgment in Charman, stated:-

“It is well established in the context of the cognate provision of Section 111(2) of the 1996 Act [Article 145 of the 1996 Order that reasonable ignorance of time-limits (by a person who is not represented by solicitors or other skilled advisers] will render it not reasonably practicable for him to comply with those time-limits.”

3.3 The statutory dismissal procedures contained in the 2003 Order and the 2004 Regulations allowed, in certain circumstances, a one-off extension by three months where such a disciplinary and dismissal procedure applied. Those circumstances were where the employee presented a complaint to the tribunal after the expiry of the normal time-limit but had reasonable grounds for believing, when it expired [tribunal’s emphasis], that a dismissal or disciplinary procedure was being followed, whether statutory or otherwise, in respect of matters that consisted of or included the substance of the tribunal complaint (see Regulation 15 of the 2004 Regulations). The statutory grievance procedures were abolished by the Employment Act (Northern Ireland) 2011 (‘the 2011 Act’), which came into force on 3 April 2011. By Section 3 of the 2011 Act, the provisions concerning extensions of time-limit, which included thereby Regulation 15, insofar as it applied to the statutory dismissal procedures, were repealed; and therefore the time-limit, and any extension thereto for an unfair dismissal claim, reverted to the previous three month time-limit, as set out in Article 145. It is of interest to note that since the appeal procedure, in the present case, ended with the letter by the respondent to the claimant dated 15 July 2015, this was still within the normal time-limit period of three months and therefore no such extension of time under Regulation 15 of the 2004 Regulations would have been able to be used by the claimant, in this case, even if Regulation 15 had still been in force.

In a series of cases in Great Britain when a similar provision to Regulation 15 of the 2004 Regulations still applied to give such a one-off extension, as set out above, the effect of those cases was that where the statutory dismissal procedure had been invoked but ended prior to the expiry of the normal time-limit, the only period that was relevant to the determination of the reasonably practicability question was that part of the limitation period remaining following the ending of the internal appeal process. Each case depended on its own facts but the shorter the period in question the more chance the claimant had in showing that it was not reasonably practicable to present the claim before the end of the normal time-limit; and, if he did so, he still had to go on to show that he presented the claim within a reasonable time of the relevant expiry date and so should be granted an extension (see further, for example, Royal Bank of Scotland v Bevan [2008] ICR 682, Ashcroft v Haberdashers Aske’s Boys School [2008] ICR 613).

There would seem to be little doubt that these cases in Great Britain, as referred to above, were clearly influenced by the fact that Regulation 15 (under the equivalent Regulations in Great Britain) allowed for an extension of time where an internal appeal procedure was taking place at the end of the relevant three month period.

Indeed in Charman, a case decided after the repeal of the statutory procedures and the said one-off extension of time provision, Underhill J accepted not only that the Ashcroft dicta (and presumably also Bevan) depended on the fact the said statutory procedures and one-off extension of time provision were in force but also, since their repeal, “the law had accordingly reverted to what it was before”. Thus, I do not propose to follow the decisions in Bevan and Ashcroft since, in Northern Ireland, as set out above, Regulation 15 of the 2004 Regulations is no longer in force.

It was therefore necessary to determine the present proceedings on the basis of the dicta set out in Bodha by Browne-Wilkinson J, and approved in Palmer and Saunders; but also as more recently interpreted in Marks & Spencer PLc v Williams-Ryan and, in particular, in Charman and Dillon by Underhill J. In relation to Charman, it is necessary to note that, unlike the present proceedings, the notification of the result of the appeal was after the expiry of the three month time-limit.

4.1 In light of the facts as found by the tribunal and the said legal authorities, I then reached the following conclusion in relation to the second issue the tribunal was required to determine:-

“Was it reasonably practicable in all the circumstances for the claimant to lodge his claim in time?”

I am satisfied it was reasonably practicable to present his claim in time. (In the circumstances, it was not therefore necessary for me to consider the third issue, as set out above.)

The claimant at all times knew of his right to bring his claim of unfair dismissal. At the time of his dismissal he knew of the three month time-limit; albeit I accept he did not know that it ran from the date of his dismissal rather than notification of the outcome of his appeal.

However, as seen above, on the particular facts of the case, since the claimant was informed of the outcome of his appeal on 17 July 2015, even if Regulation 15 of the 2004 Regulations had been in force, the claimant would not have been entitled to any extension as the internal appeal procedure had concluded prior to the end of the three month period. As seen in Bodha and Palmer and Saunders, but also Williams-Ryan and Charman, the fact of an impending internal appeal, was not sufficient to justify a finding of fact that it was not reasonably practicable to present a claim to the tribunal.

I consider that since Williams-Ryan, but also Charman and Dillon, there has been a more generous approach to this issue, especially where a person has not had any relevant representation, than might previously have been considered to be the position, based on the decision in Bodha and Palmer and Saunders. However the claimant, following what he had been told by the solicitor in June 2015 took no further action and/or failed to make any relevant enquiries to ascertain his position. There was no reason to prevent him doing so. Indeed, regardless of what he was told by the solicitor, he was fully aware of the services of the Labour Relations Agency, which he knew would not involve him in any costs. In reality, as he admitted in evidence, he had decided, on his own initiative, to ‘let the matter drop’. Significantly, he did so at a time when the three month period was running. Unfortunately, the ‘chance meeting’ of his father at the community event was after the said period had expired. But for the ‘chance’ meeting, I am satisfied the claimant would have continued ‘to let the matter drop’. That was his own decision. Unfortunately, he changed his mind when it was already too late. This case illustrates how, if relevant enquiries had been made by the claimant of the Labour Relations Agency, or any other relevant body such as the Citizens Advice Bureau, the Law Centre or someone like Mr McCann at the Vine Centre, at any time during the period 15 June 2015 to 15 September 2015, a claim could have been brought in time. In the absence of any reason to prevent the claimant doing so, in my judgment, it had to have been ‘reasonably practicable’ for him to present his claim in time.

5.1 I am satisfied, for the reasons set out above, the claimant’s claim was out of time and it was reasonably practicable for him to present his claim in time. The tribunal therefore does not have jurisdiction to consider and determine the claimant’s claim and it must be dismissed.

Employment Judge

Date and place of hearing: 7 January 2016, at Belfast

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gourley v Survitec Group Limited [2016] NIIT 02416_15IT (15 January 2016) URL: http://www.bailii.org/nie/cases/NIIT/2016/02416_15IT.html Cite as: [2016] NIIT 2416_15IT, [2016] NIIT 02416_15IT

Industrial Tribunals Northern Ireland Decisions