McKinney v Derry's Limited [2013] NIIT 02225_12IT (06 March 2013)

2225_12IT McKinney v Derry's Limited [2013] NIIT 02225_12IT (06 March 2013) [ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Industrial Tribunals Northern Ireland Decisions You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKinney v Derry's Limited [2013] NIIT 02225_12IT (06 March 2013) URL: https://www.bailii.org/nie/cases/NIIT/2013/2225_12IT.html Cite as: [2013] NIIT 02225_12IT, [2013] NIIT 2225_12IT [ New search ] [ Printable RTF version ] [ Help ] THE INDUSTRIAL TRIBUNALS CASE REF: 2225/12 CLAIMANT: Martin McKinney RESPONDENT: Derry’s Limited WRITTEN REASONS FOR A PRE-HEARING REVIEW DECISION The oral decision of the pre-hearing review was that the claim of unfair dismissal was out of time and that the relevant time-limit could not properly be extended. The tribunal therefore had no statutory jurisdiction to hear the claim and the claim was dismissed. This document represents the written reasons for that decision. Constitution of Tribunal: Vice President (sitting alone): Mr N Kelly Appearances: The claimant appeared in person and was not represented. The respondent was represented by Ms R Connolly, Solicitor, of Rosemary Connolly, Solicitors. Relevant findings of fact 1. The claimant was dismissed from his post by the respondent company in a letter dated 16 July 2012. He lodged an appeal against that dismissal by way of a letter dated 18 July 2012. That appeal hearing took place on 24 July 2012 and the claimant was notified that his appeal had been dismissed in a letter dated 27 July 2012. The claimant had a further right of appeal, which he exercised, to the managing director and that was contained in a letter dated 31 July 2012. That second appeal was dismissed in a letter dated 8 August 2012. 2. The tribunal claim was lodged by the claimant in the Office of the Tribunals on 5 November 2012. The claim was therefore some three weeks outside the three month statutory time-limit for lodging a claim set out in the Employment Rights (Northern Ireland) Order 1996. 3. The claimant consulted a solicitor on more than one occasion during the appeal process. That solicitor drafted his letters in relation to that process. After receipt of the dismissal of the second appeal, in a letter dated 8 August 2012, the claimant had a meeting with that solicitor again. He was advised that if he wished the solicitor to act on his behalf in an industrial tribunal process, that solicitor would require payment in advance. The claimant stated that he was not advised at that point, or in any event does not remember being advised, that his tribunal claim had to be lodged within three months of the date of the actual dismissal. 4. The claimant did not engage that solicitor to lodge a tribunal claim and apparently did not contact that solicitor further in relation to this matter. Some time later, and entirely by accident, the claimant noticed a local office of the Citizens Advice Bureau. He went at that point to speak to somebody in the Citizens Advice Bureau but had to make an appointment. That took approximately one week. He then met with a Citizens Advice Bureau adviser who obtained the necessary industrial tribunal form from the Office of the Tribunals. Completion of that form required a second appointment with the Citizens Advice Bureau adviser. Following that second appointment and indeed the third point of contact with the Citizens Advice Bureau, the claim form was lodged in the Office of the Tribunals on 5 November 2012. 5. The claimant stated that he was not advised, or does not remember being advised, by the Citizens Advice Bureau of the three month time-limit which ran from the date of his dismissal, ie from 16 July 2012. Reasons for decision 6. Article 154 of the Employment Rights (Northern Ireland) Order 1996 provides:- “(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. (3) Where a dismissal is with notice, an industrial tribunal shall consider a complaint under this Article if it is presented after the notice is given but before the effective date of termination.” 7. The letter dismissing the claimant, dated 16 July 2012, stated:- “Your employment is terminated effective immediately Monday 16 th July at 1700 pm, you will not be required to work a week’s notice.” The claimant therefore knew that he was being dismissed with pay in lieu of notice and that the time for lodging a tribunal claim should have run immediately. 8. There was brief discussion in the course of the hearing about Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 which provided for the extension of three months statutory time-limit in certain narrow circumstances which only applied where the claimant had reasonable cause for believing, when the three month time-limit expired, that an internal appeal process was still underway. That in any event could never have been the situation on the facts of the present case, where the entire appeal process, involving two separate internal appeals, was concluded by 8 August 2012, well within the three month time-limit. Furthermore, this particular Regulation was underpinned by Article 21 of the Employment (Northern Ireland) Order 2003 which was itself repealed with effect from 3 April 2011 by the Employment Act (Northern Ireland) 2003. 9. The claimant stated that he had been led to believe by fellow workers that his internal appeal would have been, in due course, allowed and that he would have been reinstated by the respondent. He also based this belief on what he alleged had happened to another worker who had been initially dismissed some three months earlier and then reinstated on appeal. The dismissal was, in the belief of the claimant, just a ‘ scare tactic ’. That evidence does not appear to be credible. An individual who is dismissed in these circumstances on a charge of misconduct would have been insanely optimistic to have regarded the appeal process as something which was guaranteed, or was likely, to decide the issue in his favour. In any event, this belief would only, even if it were credible, have explained a minor part of the delay of the claimant in lodging a claim. At the very latest, by 8 August 2012, the claimant could have been under no illusions as to the seriousness of the respondent in relation to the dismissal. 10. The claimant spoke to one legal adviser on several occasions about this matter and took advice. He also spoke to the Citizens Advice Bureau on three separate occasions. Two of those occasions were by appointment with a specified adviser. He states, nevertheless, that he did not know that there was a three month time-limit for lodging a claim. He also states that he was never told by the solicitor, or by anybody in the Citizens Advice Bureau, that there was a three month time-limit for lodging a claim. It is simply not credible that the claimant received advice from a professional legal adviser and then separately from an experienced voluntary organisation and was still not aware or could still reasonably have not have been aware that there was a three month time-limit for lodging a claim. 11. The EAT in Northamptonshire County Council v Entwhistle [2010] IRLR 740 stated:- “[Equivalent GB legislation] should be given a liberal construction in favour of the employee. In accordance with that approach, it has consistently been held to be not reasonably practicable for an employee to present a claim within the primary time-limit if he was, reasonably [tribunal’s emphasis], in ignorance of that time-limit.” “In a case where a claimant has consulted skilled advisers the question of reasonable practicability is to be judged by what he could have done if he had been given such advice as the adviser should reasonably in all the circumstances have given.” 12. There is an earlier line of authorities stemming from the Court of Appeal decision in Dedman v British Building & Engineering Appliances [1973] IRLR 379 which has established that negligence or delay or, alleged negligence or delay, by an adviser is to be ascribed to the claimant. Any remedy that a claimant might have lies against that adviser or advisers. It is not a ground, in itself, for extending time. 13. The claimant indicated in evidence that he had suffered from depression at the relevant time. I accept that was the case. Nevertheless, the claimant was well able to take part in the internal appeal processes, well able to consult with his solicitor on several occasions and to give instructions to that solicitor, and equally well able to consult with the Citizens Advice Bureau in relation to this matter. There is no convincing evidence that the claimant’s medical condition in any way impacted adversely on his ability to progress this matter within the statutory time-limit. 14. The claimant’s position is that, after repeated contact with two separate advisers, he remained ignorant of the statutory three month time-limit for lodging a claim. That cannot be regarded as reasonable on his part. Furthermore, there is no evidence that in the period after leaving his solicitor in the first part of August 2012 and before contacting the Citizens Advice Bureau he took any steps to progress what he knew to be an industrial tribunal claim and there is no reason why he could not and should not have done so. 15. In the oral decision given at the end of the pre-hearing review, I therefore stated to the parties that the claim was clearly some three weeks out of time and that there were no grounds upon which a tribunal could properly extend time in these circumstances. The claim was therefore dismissed. Vice President: Date and place of hearing: 5 March 2013, Belfast Date decision recorded in register and issued to parties: BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/nie/cases/NIIT/2013/2225_12IT.html