Industrial Tribunals Northern Ireland Decisions

 

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2038/10 

 

 

 

CLAIMANT:                      Jean Martin

 

RESPONDENT:                Shac Housing Association (SHAC)

 

 

 

DECISION

 

The decision of the tribunal is that the claimant claim was lodged outside the requisite time-limit, the tribunal declines to extend time and her claim is therefore dismissed.

 

 

Constitution of Tribunal:

 

Chairman:                        Mrs Ó Murray

 

Members:                        Mr G Hunter

                                        Mr J Kinnear

 

 

Appearances:

 

The claimant was represented by Mr P Boomer of NIPSA.

 

The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by J Blair Employment Law Solicitors.

 

 

The Claim

 

1.       The claimant’s claim was that she was subjected to a detriment on grounds of her part-time status by being denied the opportunity to apply for temporary promotion to the post of Senior Support Worker in January 2010.

 

The Issues

 

2.       The issues for the tribunal therefore were as follows:-

 

          1.       Was the claimant’s claim presented within the requisite time limit and if not, is it just and equitable to extend time?

 

          2.       The respondent conceded that the claimant was less favourably treated than her comparator, Ms Agnes Crawford.  An issue for the tribunal therefore, was whether the less favourable treatment was on grounds of the claimant’s part-time status, sufficient to bring her within the scope of the
Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000.

 

          3.       Were the actions of the respondent objectively justified in that the act complained of was done in pursuance of a legitimate aim and the means by which the legitimate aim was pursued were proportionate and necessary?

 

Sources of Evidence

 

3.       For the claimant the tribunal had the witness statements and oral testimony of the claimant and Ms Siobhan Curley.  The tribunal also had before it witness statements from Ms Lucy Ross and Ms Michaela Toland, neither of whom appeared to give oral evidence.

 

4.       For the respondent, the tribunal had witness statements and oral testimony from Mrs Valerie McConnell, Mr Brian McKenna and Mrs Barbara Haggan.  By consent the respondent submitted a witness statement from Mr Les Love, although Mr Love did not attend to give oral evidence.  The tribunal also had regard to the documentation to which it was referred during the hearing.

 

The Law

 

5.       The claimant’s claim for discrimination on grounds of her part-time status derives from the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 (“the Regulations”). The claimant relied on Regulation 5(1)(b) which renders unlawful less favourable treatment of a part-time worker compared to a comparable full-time worker, which results in a detriment to the part-time worker.

 

6.       Regulation 8 sets out the relevant time limit and the tribunal’s discretion to extend time on just and equitable grounds.  The effect of Regulation 8 is that a claim must be presented within three months of the date of the act of discrimination.  If the act of discrimination is an allegation of a failure to act, time runs from the date when the employer did an act inconsistent with doing the failed act.

 

7.       Where a claim is presented outside the three month time limit a tribunal may consider it if, in all circumstances of the case, it considers it just and equitable to do so (Regulation 8(3)).

 

8.       The Employment Appeal Tribunal, in the case of British Coal Corporation v Keeble [1997] IRLR 636, held that the discretion 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 the jurisdiction is the Limitation (Northern Ireland) Order 1989.  At article 50(4) of that Order are outlined the matters which can be considered and these include the extent of the delay; the reasons for the delay; whether advice was sought and whether action was taken as a result; and the effect of the delay on the cogency of the evidence.

 

9.       The Court of Appeal in the case of Robertson v Bexley Community Centre [2003] IRLR 434 stated as follows in relation to the issue of extension of time limit.

 

“An employment tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time.  It is entitled to consider everything that it considers relevant.  However time limits are exercised strictly in employment cases.  When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify the failure to exercise the discretion.  On the contrary the tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time.  The exercise of discretion is thus the exception rather than the rule.”

 

10.     The principle is that the date of the act of discrimination must be capable of determination by reference to the occurrence of an act or acts and not be dependent on the state of knowledge of the disadvantaged party.  Any lack of knowledge of facts required to prove discrimination is one of the relevant factors for the exercise of the discretion to allow claims out of time on the basis of what is just and equitable.

         

11.     The tribunal had regard to Harvey on Industrial Relations and Employment Law Division A1 paragraphs 133-155 which deals with part-time workers. 

 

12.     The parties referred the tribunal to the relevant paragraphs in Harvey and to the following cases:

 

          Apelogun – Gabriels v London Borough of Lambeth [2002] IRLR 116

          Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434

          McMenemy v Capita Business Services Limited [2007] IRLR 400

          Carl v University of Sheffield [2009] IRLR 616

          Bailey v Northern Ireland Fire and Rescue Service IT Decision Ref 1699/08.

 

          The Bailey decision was referred to as it outlines the test for objective justification at paragraphs 24 and 25 as set out in the Court of Appeal Decision of Hampson v Department of Education and Science [1989] IRLR 69.

 

13.     Our attention was drawn by the parties to paragraph 145 of Harvey which discusses the differing interpretations given by appellate courts to the scope of the protection provided to part-time workers under the Regulations and the Directive.

 

14.     The Scottish Court of Session in the case of Menemy v Capita Business Services Limited [2007] IRLR 400 held that the wording in the relevant European Directive meant that the part-time status of the claimant had to be the sole cause of the less favourable treatment.  However, the EAT in England in the cases of Sharma v Manchester CC [2008] IRLR 336 and Carl v University of Sheffield [2009] IRLR 616 found that “part-time work must be the effective and predominant cause of the less favourable treatment complained of; it need not be the only cause” (Judge Clarke in Carl).

 

15.     Whilst the Regulations were brought into operation in order to implement the Part-Time Work Directive (Directive 97/81/EC), the power to make the Regulations was contained in the Employment Relations (Northern Ireland) Order 1999 rather than in Section 2(2) of the European Communities Act 1972.  This method of implementation of the Directive meant that there was scope for the Government to go beyond the Directive in the protection to be provided to part-time workers. 

 

16.     Regulation 5(2)(a) does not stipulate that the less favourable treatment must be on the sole ground of the part-time status: rather the formulation adopted is along the same lines as that adopted in all other pieces of anti-discrimination legislation, namely, that the right not to be treated less favourably to the claimant’s detriment applies only if:  “the treatment is on the ground that the worker is a part-time worker”.

 

17.     It is open to the employer to raise the defence of objective justification for any less favourable detrimental treatment suffered by the claimant due to her part-time status.  The parties agreed that the authoritative test on justification is found in the case of Hampson v Department of Education and Science [1989] IRLR 69.  The Court of Appeal in that case decided that objective justification involves the tribunal balancing the discriminatory effect of the act and the reasonable needs of the employer.  The act should correspond to a real need on the part of the employer and should be an appropriate and necessary way of achieving the objective. 

 

18.           The claimant’s representative referred to the Code of Practice on Removing Sex Bias from Recruitment.  This Code of Practice relates to the area of sex discrimination where objective justification is not available to an employer in cases of direct discrimination.  For this reason we found it of limited assistance to us in assessing the reasons put forward by the employer for the objective justification defence.

 

Findings of Fact and Conclusions

 

19.     The tribunal considered all the evidence both oral and documentary and found the following facts proven on a balance of probabilities and reached the following conclusions having applied the law to the facts found.

 

General

 

20.     The evidence contained in the witness statements relating to the conduct of the grievance procedure which took place between May and July 2010 was not relevant to the issues before us as the statutory grievance procedures do not apply to part-time worker claims.  We therefore disregarded any evidence in relation to the conduct of the grievance procedure except insofar as it shed any light on the claimant’s knowledge of Ms Crawford’s appointment.

 

21.     We attached little weight to the statements of Mr Love, Ms Ross and Ms Toland as none of them was available for cross-examination.  The evidence of Mr Love in relation to the crisis in the organisation was not relevant to the issues in contention before us as the crisis situation was agreed by the parties and by the claimant in her evidence.

 

22.     We attached little weight to the evidence of Ms Curley in relation to the amount of work outstanding as it was not supported by the documents before us and we were also cognisant of the fact that Ms Curley was a member of the management team which was suspended following the adverse report and she therefore had a clear motive in her evidence to seek to vindicate her actions prior to her suspension.

 

23.     In the course of Ms Curley’s evidence a new issue (relating to an alleged previous truncated procedure) was raised by her which was not in her statement nor was it in the claimant’s claim form, the claimant’s statements nor in her oral evidence.  The issue had not been put to any of the respondent’s witnesses in cross-examination.  The respondent’s representative sought an adjournment if that evidence were to be allowed, to enable it to conduct investigations to obtain documents, and to consider the recalling, or calling of further witnesses.  The claimant’s representative, following consultation with the claimant, indicated that the claimant withdrew reliance on that part of the evidence and stated that the tribunal should disregard the evidence alluded to and stated that the claimant wanted the case to proceed without adjournment.  The tribunal therefore expressly disregarded the evidence given in relation to an alleged previous truncated appointment/promotion procedure.

 

24.     The parties agreed that Ms Crawford was a valid comparator for the purposes of the Regulations.

 

25.     In the course of the hearing, when the parties were agreeing a schedule of loss for use by the tribunal, the claimant’s representative specifically abandoned the claimant’s claim for loss of pension and loss of enhanced redundancy due to the fact that when she left her employment she was not on the higher salary of the post which was given to Ms Crawford. 

 

Supporting People Programme

 

26.     At the time relevant to these proceedings, the claimant was employed as a Support Worker and was one of 6 employees involved in administering the respondent’s Supporting People Programme.

 

27.     The Supporting People Programme was financed with funding from the Northern Ireland Housing Executive which, at the time relevant to these proceedings, amounted to approximately £400,000.00 per annum.  That funding constituted 25% of the respondent’s income.  A condition of the funding, appears to have been that regular returns would be provided to the Housing Executive to show the number of “live” cases and the level of activity on each case so that the way the funding was being spent could be monitored.

 

28.     The Supporting People Programme supported vulnerable tenants such as those with alcohol or drug problems or those at risk of suicide.

 

29.     In 2009 an adverse report was issued by the Department for Social Development (DSD) following an inspection of the respondent’s organisation and the respondent was rated as performing unacceptably in 3 out of 4 categories.  The senior management team was then suspended and in December 2009 Mr McKenna, a qualified accountant from another housing association was appointed as Acting Chief Executive in order to carry out a review of the respondent’s circumstances, including its financial situation.

 

30.     On 21 December 2009 it also became apparent to Mr McKenna, following an urgent meeting with the Housing Executive, that the funding for the Supporting People Programme was under imminent threat due to serious concerns raised by the Housing Executive in that meeting.  One of the main concerns expressed was that monthly and quarterly returns for the Supporting People Programme had not been submitted for 2008/2009 and 2009/2010 which meant that the funding provided by the Housing Executive could not be properly monitored.  This put the funding for that programme in imminent jeopardy.  

 

31.     We accept Mr McKenna’s evidence, which is corroborated by the documentation, that the Housing Executive advised him that 2 years’ returns were outstanding and that this was borne out by his subsequent investigations.

 

32.     At Mr McKenna’s entreaty, the Housing Executive agreed to allow 2-3 weeks for the completed returns to be submitted.

 

33.     It was common case between the parties, and we so find, that there was a crisis in the respondent’s organisation in December 2009 due to the suspension of the management team, the adverse report by DSD, and the imminent loss of funding from the Housing Executive.

 

34.     Mr McKenna was faced with a crisis situation where the viability of the organisation was at risk.  If the Housing Executive funding were to be withdrawn with the loss of 25% of the respondent’s income, there was the distinct likelihood that the organisation would collapse with the loss of jobs of the 58 staff and with the potential for abrupt withdrawal of the service to vulnerable tenants.

 

35.     One of the measures taken to deal with the crisis was to appoint an independent consultant, Mr Les Love in order to conduct an urgent review in liaison with Mr McKenna.  One of Mr McKenna’s other urgent tasks was to ensure that the outstanding returns for Supporting People Programme were collated and sent to the Housing Executive.  Mr McKenna required help to co-ordinate and liaise with Mr Love and the Housing Executive and others in order to complete as quickly as possible the urgent work required to ensure the viability of the organisation.

 

36.     Mr McKenna took the decision that he required an assistant (namely a Senior Support Worker) to be appointed immediately.  He assessed that he required someone based in Belfast, on a full-time basis with availability to work overtime, and with the ability to:  collate returns; to deal immediately with complex cases; and to liaise closely with him and Les Love on the work.

 

37.     In evidence to the tribunal, the claimant stated that she would have been prepared to work full-time and to travel to Belfast in order to perform the work associated with the post of Senior Support Worker.  This point had never been mentioned before by the claimant in the course of her dealings with Mr McKenna, in the course of the grievance procedure, in the claim form for the tribunal nor in preparation for the tribunal hearing.  Whilst making this case to us the claimant also said that the post-holder did not need to be based in Belfast at all as close liaison could have been maintained by the use of computers and by Mr Love travelling to Londonderry.

 

38.     This contradictory evidence, raised so late in the day, tainted the claimant’s credibility on this point for us.  We therefore find that Mr McKenna had no reason to believe that the claimant would be willing to move or to work full-time at the time he made the decision to appoint Ms Crawford.

 

39.     Of the 6 staff involved in the Supporting People Programme, Ms Crawford was the only full-time member of staff based in Belfast and had experience of complex cases as she was working on the majority of them.  For these reasons, Mr McKenna decided to appoint her to the temporary position of Senior Support Worker which, at the time he made the decision, was envisaged to last for one month.

 

40.     Ms Crawford was appointed on 20 January 2010 with increased duties and an increased salary.  She also had management responsibility.

 

41.     It was the complex cases which required the most work on returns.  The returns which had been done revealed 75 live cases which the Housing Executive calculated would require no more than £200,000.00 funding.  This meant that at least half the funding was immediately in jeopardy and this amounted to 25% of the respondent’s total income.

 

42.     The concern over the level of returns was that they did not disclose the true number of live cases nor did they disclose the level of activity on all cases.

 

43.     Complex cases meant that tenants had suicide tendencies or alcohol or drug problems and the assessment of those cases for the returns required liaison with other case providers.

 

44.     Of the six people in the team, three were temporary employees and three were permanent employees.  Of the three permanent employees, two were part-time and only Ms Crawford was full-time.

 

45.     The effect of this decision was that the claimant, a part-time worker based in Londonderry, and the other 4 workers (3 of whom were temporary employees), were all excluded from consideration for the temporary promotion.

 

46.     From that date (20 January 2010), the claimant and others in the team had to seek approval for expenses and holidays from Ms Crawford.  It is clear from the evidence that the claimant suspected that something had happened because she started to query the position of Ms Crawford immediately.  Whilst the claimant’s case is that she did not know until 25 May 2010 that Ms Crawford had been promoted to the post, the respondent’s case was that it was clear to the staff that Ms Crawford had been appointed to a higher level given the changes in procedures from January even though there was no specific announcement of her appointment. 

 

47.     Mr McKenna gave evidence that in a conversation in January 2010 with the claimant he confirmed Ms Crawford’s promotion to Senior Support Worker. In the claimant’s supplementary statement she confirms that she questioned why she had not been given the opportunity to apply for the Senior Support Worker post in January 2010 in a conversation with Les Love.  The claimant’s contention on this appears to be that there was no formal announcement of the appointment to the particular post and no mention of the higher salary attached to the post.

 

48.     We are satisfied from an assessment of all the evidence in this point that the claimant knew that Ms Crawford had been appointed to a Senior Support Worker post in January 2010 as this led to her making clear her unhappiness with this development.  It was not necessary for the claimant to know the specific salary attached to the post, nor indeed if a higher salary was attached to the post, as it was clear that she felt that she had been treated detrimentally by this appointment.

Time Point

 

49.     We were not satisfied with the claimant’s evidence in several respects in relation to her knowledge of the change in Ms Crawford’s role.  In the claimant’s supplementary statement she accepts that she asked why she had not been given the opportunity to apply for the Senior Support Worker post.  The claimant confirms that she did this in January 2010.  The only point of contention between the parties was whether she said this to Mr Love or Mr McKenna.  Mr McKenna’s evidence was clear that he told the claimant in a conversation with her that Ms Crawford had been appointed to that role.  We accept Mr McKenna’s evidence on this as we regard it as implausible for the independent consultant to have been discussing such matters with the claimant.  Irrespective of the identity of the person who revealed this to the claimant, it is clear that she knew in January 2010 that Ms Crawford had been appointed to a senior role and that the claimant was unhappy about this.

 

50.     We are satisfied that the claimant knew that something to her detriment had happened in January 2010 when she was told that Ms Crawford had been appointed Senior Support Worker and had clearly been given more responsibility.

 

51.     In this case time runs from the date upon which Ms Crawford was appointed to the post namely 20 January 2010 as this was the act which was inconsistent with the act of failure to give the claimant the opportunity to apply for the post.  The three month time limit therefore expired on 20 April 2010.  The claim form was lodged on 24 August 2010 and was therefore presented outside the time-limit.

 

52.     The issue of the claimant’s knowledge of the detriment relates to whether or not time should be extended on just and equitable grounds.

 

53.     The claimant raised a grievance on 25 May 2010 and this process concluded in July 2010. The claimant did not seek advice nor did she raise a grievance between the date of appointment (20 January 2010) and the 25 May 2010 despite her clear concerns about Ms Crawford’s new role.

 

54.     In the grievance hearing on 24 June 2010, the claimant confirms that she had previously queried with Mr McKenna the appointment of Ms Crawford and was advised by him that it had to be a Belfast employee and full-time.  This happened some time between March and June 2010.   At that point the claimant became aware that the detriment she suffered was partly because of her part-time status.  We are not satisfied that the claimant moved quickly enough to lodge her claim form after that period. The claimant also had the benefit of Trade Union advice from at least the beginning of June 2010 and the claimant gave us no reason for the delay in lodging proceedings between the beginning of June and the 24 August 2010.

 

55.     The Apelogun case makes clear that there is no general principle that a claimant should pursue internal appeal procedures before considering whether to lodge tribunal procedures.  The pursuit of internal grievance and appeal mechanisms is one of the factors which a tribunal can consider in deciding whether or not it is just and equitable to extend time.  Even when the internal procedures were finished the claimant waited a further month before presenting her claim.

 

56.     The Robertson case makes clear that time-limits are to be adhered to and the burden is on the claimant to persuade us to exercise our discretion to extend time.  We have balanced all the factors outlined at paragraph 8 above and we conclude that we are not satisfied that the claimant took sufficient steps to seek advice at an earlier stage nor are we satisfied that she moved quickly enough to lodge proceedings.  The claimant has failed to persuade us that it would be just and equitable to extend time and we therefore dismiss her case.

 

Substantive issues

 

57.     Given that we heard evidence on the substantive case in order to deal with the issue of knowledge, we wish to record our views on the substantive case as follows.

 

58.     In view of the clear wording of the Regulations and the method of implementation of the Directive, we have decided to follow the reasoning of Elias J in the case of Sharma as this is in line with the approach taken in all other forms of discrimination.  We have therefore decided that the part-time status does not need to be the only cause of the less favourable treatment but must be the effective and predominant cause of it.

 

59.     It is clear that the claimant was less favourably treated than Ms Crawford in not being offered the opportunity to apply for the temporary promotion which became available in December/January 2010.  It is also clear that one of the primary reasons for appointing Ms Crawford was that she worked full-time.  The corollary of that is that one of the primary reasons for the claimant being excluded from consideration was because she was part-time.

 

60.     We do not accept the claimant’s contention that the post should only have been opened up to her and Ms Crawford.  We accept the respondent’s case that if the promotion had been trawled, the trawl would have to have included all six members of the supporting people team and, indeed, other eligible members of staff throughout the organisation.  We therefore accept the respondent’s argument that this would have taken some weeks to achieve.  We therefore reject the claimant’s contention that 48 hours would have been all that was required to choose between her and Ms Crawford.

 

Objective Justification

 

61.     We are satisfied that the respondent has shown objective justification for the less favourable treatment.  We are satisfied that there existed an exceptional emergency situation in the respondent organisation at the time.  Mr McKenna, the Acting Chief Executive was struggling to deal with the numerous serious matters emerging daily from the date of his appointment in December 2009.  The issue of the Housing Executive funding for the Supporting People Programme was a “make or break” issue for the organisation requiring urgent efforts given the short timescale imposed by the Housing Executive.

62.     We are satisfied that it was a legitimate business objective of the respondent to seek to provide the Housing Executive with the information it sought in order to give clarification on where public funds were being spent.  We are also satisfied that it was legitimate of the respondent to try to protect 25% of its income in the midst of a crisis and that it was legitimate for the respondent to seek to protect the funding which helped vulnerable people. 

 

63.     We are satisfied that the viability of the organisation as a whole was in jeopardy and regard it as a legitimate aim for the respondent to seek to protect the Housing Executive funding to prevent the organisation collapsing with the loss of jobs and with the potential abrupt loss of service to vulnerable tenants.

 

64.     We are satisfied that the decision to appoint Ms Crawford as a full-time employee based in Belfast familiar with the most complex cases, corresponded to a real need on the part of the organisation to provide necessary returns and to assist the Chief Executive and the consultant in their urgent work.  We are satisfied that it was appropriate and necessary to make the appointment without trawling the appointment as this would have led to a potentially fatal delay.

 

65.     The urgent appointment of Ms Crawford was a proportionate means to achieve that aim and was reasonable and necessary in the circumstances.  Whilst the claimant and Ms Crawford were equally capable of dealing with complex cases, Ms Crawford was the only person who could immediately slot into post and collate the necessary information in the short time-scale available as she was actually working on the majority of complex cases which were in Belfast.  The information on these cases was at the heart of the effort to provide the necessary information to the Housing Executive.  Personal liaison with the various parties involved and availability for face-to-face meetings, at short notice, was a reasonable and necessary requirement in the circumstances.  It was therefore reasonable to expect the person to be based in Belfast, to be familiar with the complex cases and to be available full-time to carry out the level of work necessary in the short time-frame.

 

Summary

 

66.     The claimant’s claim was lodged outside the requisite time-limit and the tribunal declines to extend time.  The tribunal therefore has no jurisdiction to entertain the claim.  The claimant’s claim is dismissed in its entirety.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:    23 to 26 May 2011, Belfast.

 

Date decision recorded in register and issued to parties: