Elaine Stewart v. Tim McQuoid Solicitors (Sole Trader) - (16 Nov 2016)

Mere fact of pending internal appeal, by itself, not sufficient to justify finding of fact that it was not "reasonably practicable" to present complaint to tribunal

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In instant case, claims lodged with tribunal were a claim of unfair dismissal, unlawful deduction of wages, breach of contract and sex discrimination. In facts of case, claimant commenced employment with Respondent as a Trainee Solicitor on or about 1 September 2014. On or about 16 June 2015, there was incident in Respondent's office. The claimant did not work for the respondent after that date. In her evidence to tribunal and in her claim form, claimant accepted that 16 June 2015 was the latest date on which any alleged discrimination occurred. On 23 June 2015, the claimant wrote a grievance letter to Respondent in which she stated that she considered it impossible to return to the respondent's practice. For purposes of pre-hearing review, tribunal finds that effective date of termination of claimant's employment with Respondent was 15 September 2015.

As per Article 145 (2) of Employment Rights (Northern Ireland) Order 1996, there are two limbs to discretion to extend time in article 145 (2) (b). Firstly, claimant must satisfy tribunal that it was not reasonably practicable for her to lodge her claim within 3 months of effective date of termination of her employment and secondly, claim must then be lodged within such further period as the tribunal considers reasonable. In case of Bodha (Vishnudut) v Hampshire Area Health Authority 1982 ICR 200, it was held that mere fact of a pending internal appeal, by itself, not sufficient to justify a finding of fact that it was not "reasonably practicable" to present a complaint to tribunal. It has been held in case of Hutchinson v Westward Television Ltd 1977 IRLR 69 that the "just and equitable" formula gives the tribunal " a wide discretion to do what it thinks is just and equitable in the circumstances....they entitle the tribunal to take into account anything which it judges to be relevant".

Claimant accepted under cross-examination that when she started with her new employer, Respondent was no longer her employer. Accordingly, tribunal found as a fact that (at the latest and giving the claimant the benefit of any doubt) the claimant's employment with the respondent ended on 15 September 2015. Claimant's claim was not lodged until 31 May 2016, that is more than 8 months later.

Claimant was a trainee solicitor and she accepted that she was aware of her right to bring a claim of unfair dismissal and of time limits relating to such a claim. Claimant's evidence was that she did not bring her claim within the primary time limit of three months because she was hoping that the grievance she had lodged with the respondent would be resolved.

It was clear to the tribunal from claimant's evidence, and particularly concessions she made under cross-examination, that claimant had essentially made a conscious choice not to lodge a claim of unfair dismissal before end of May 2016. This was close to 1 year after date when she had last worked for the respondent and more than 8 months after she began working for her new employer. Other than her choice to wait and see what happened with her grievance, claimant was unable to point to any other factor or obstacle which prevented her from lodging her claim within the primary time limit. Therefore, in line with Bodha case, there were no special facts which might persuade the tribunal that it was not reasonably practicable to complain to the tribunal within the time limit.

Tribunal is not persuaded that present is a case where it would be just and equitable to extend the time for lodging the claim. Tribunal has therefore determined that, claim of sex discrimination was lodged significantly out of time and tribunal has no jurisdiction to hear the claim.

Relevant : Bodha (Vishnudut) v Hampshire Area Health Authority 1982 ICR 200, Hutchinson v Westward Television Ltd 1977 IRLR 69, Article 145 (2) of Employment Rights (Northern Ireland) Order 1996

Tags : DISMISSAL   LIMITATION   JURISDICTION  

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