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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Kennedy v Department for Employment & Learning [2006] NIFET 374_04 (2 March 2006) URL: https://www.bailii.org/nie/cases/NIFET/2006/374_04.html Cite as: [2006] NIFET 374_04, [2006] NIFET 374_4 |
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CASE REF: 374/04FET
2451/04
CLAIMANT: William James Kennedy
RESPONDENT: Department for Employment & Learning
The decision of the tribunal is that:-
The claimant's employer had been the Department for Employment and Learning and that the proceedings should be against that respondent only, and not the Northern Ireland Civil Service.
That the claims of unlawful sex, religious and political discrimination were not presented within the time limits laid down under Article 63 of the Sex Discrimination (Northern Ireland) Order 1976 and Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 and,
That is it not just and equitable in all the circumstances of the case for the Tribunal to consider the claims despite the fact that they are out of time.
Constitution of Tribunal: Chairman Sitting Alone
Chairman: Ms P Sheils
Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr T McGleenan, Counsel, instructed by
Mr P Butler of the Departmental Solicitor's Office.
Issues for the Tribunal
(a) Whether the claim to the Fair Employment Tribunal was presented within the time limit laid down under Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 and,
(b) If not, is it just and equitable in all the circumstances of the case for the Fair
Employment Tribunal to consider this claim despite the fact that it is out of time.
The Claims and the Defence
Background
(i) The claimant was employed by the Department for Employment and Learning as a Deputy Principal between July 1990 and April 2003.
(ii) On 11 April 2003 the claimant was dismissed by his employers because of allegations that he had not followed departmental procedures when dealing with consultants.
(iii) The Northern Ireland Civil Service Appeal Board found that the claimant's dismissal had been unfair.
(iv) The claimant lodged an unfair dismissal case with the Office of the Industrial Tribunals and the Fair Employment Tribunal in 2003. By consent between the parties the case was submitted to the Labour Relations Agency Arbitration Scheme. The case was finally resolved in the claimant's favour on 14 July 2004 and the claimant was awarded compensation. On foot of that his claim for unfair dismissal was withdrawn.
(v) The claimant read an article in the Belfast Telegraph on 10 June 2004. This article was about the publication by the Northern Ireland Audit Office of a report that appeared to indicate that government departments were repeatedly breaking rules about the employment of consultants and not adhering to rules of procedure or good practice. In a sample of 100 cases a large number of contracts had not gone to competitive tendering and had also gone over budget.
(vi) The claimant contacted the Northern Ireland Audit Office and was told that no one individual involved in any of the contracts that had been done outwith proper procedures had been disciplined and certainly no one had been dismissed.
The Claimant's Submissions
The Respondent's Submissions
The respondent's representative sought to rely on the following cases;
Kirklees Metropolitan Borough Council -v- Farrell (2000) ICR 1335
Churchill -v- Yeates (1983) ICR 380
The respondent's representative also sought to rely on the relevant text in Harvey, Division T, paragraphs 238-243
"If an employee can demonstrate to the industrial tribunal that until he was aware of the possibility of challenging the reason for dismissal given by the employers, he reasonably took the view that he had no reasonable grounds to complain of unfair dismissal, it is open to the tribunal to hold that it was not reasonably practicable for him to have brought that complaint until he had discovered the crucial fact".
The Employment Appeals Tribunal went on to hold that the "fact" in question must be one of such fundamental importance that its existence or non existence makes a crucial difference as to whether or not there is a claim for unfair dismissal.
effort to uncover further information or evidence in support of his contentions during that time period.
The Claimant's Response
Applicable Law
46(1) Subject to paragraph 5, the tribunal shall not consider a complaint under Article 38 of unlawful discrimination to a tribunal unless it is brought before whichever is the earlier of –
(a) the end of the period of 3 months beginning with the day on which the complainant had first knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or
(b) the end of the period of 6 months beginning with the day on which the act was done.
46(5) A court or the tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
"an act occurs when it is done, not when you acquire knowledge of the means of proving that the act done was discriminatory. Knowledge is a relevant factor to the discretion to extend time. It is not a pre-condition of the commission of an act which is relied on as an act of discrimination".
The Tribunal also had regard to the case of British Coal Corporation -v- Keeble [1997] IRLR 636. That case held that the discretion under the Sex Discrimination
Act in Great Britain, which equates to the Sex Discrimination (Northern Ireland) Order 1976 in Northern Ireland, to grant an extension of time on just and equitable grounds is as wide as that given to the civil courts by the Limitation Act 1980. The equivalent legislation in Northern Ireland, Article 50 of the Limitations (Northern Ireland) Order 1989, sets out factors which can be considered by the tribunal in the exercise of this discretion and can be summarised by the following:-
(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 parties sued have co-operated with any request for information.
(d) The promptness with which the claimant acted once he/she knew of the fact giving rise to the cause of action.
(e) The steps taken by the claimant to obtain appropriate professional advice once he/she knew of the possibility of taking action.
This discretion is the same under the Fair Employment and Treatment (Order) 1998 and the same principles apply.
The Tribunal's Conclusions
Consideration of the statutory time limits under the legislation
are factors that the Tribunal can consider in deciding whether to exercise its discretion to extend the time limit on the just and equitable grounds.
The Just and Equitable Discretion
the same circumstances that had led to his dismissal, nor did he identify such a person who was either of a different sex to him or was of a different religion or had different political opinions to him.
That the claims of unlawful sex, religious and political discrimination were not presented within the time limits laid down under Article 63 of the Sex Discrimination (Northern Ireland) Order 1976 and Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 and,
That is it not just and equitable in all the circumstances of the case for the Fair
Employment Tribunal to consider the claims despite the fact that they are out of time.
Chairman:
Date and place of hearing: 2 March 2006, Belfast.
Date decision recorded in register and issued to parties: