THE INDUSTRIAL TRIBUNALS

CASE REF:	 5/06

CLAIMANT:			Kathy Wilson								

RESPONDENTS:		1.	City of Derry Hotel Limited
				2.	Colin Aherne

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is:-

(a)	It was not reasonably practicable for the claimant to present her claim for unfair dismissal before 13 September 2005, and she presented it within a further reasonable period (19 December 2005).  Accordingly, the tribunal has jurisdiction to hear her complaint of unfair dismissal, pursuant to Article 145(2) (b) of the Employment Rights (Northern Ireland Order 1996.

(b)	The claim of unlawful sex discrimination was not presented within the time limit specified by Article 76(1) of the Sex Discrimination (Northern Ireland) Order 1976.

(c)	It is just and equitable to extend time to 19 December 2005 and allow the claim of unlawful sex discrimination, pursuant to Article 76(5) of the Sex Discrimination (Northern Ireland) Order 1976.

(d)	The respondents are awarded costs of £734.54 because of the claimant’s unreasonable conduct of the hearing on 20 April 2006.

(e)	A Case Management Discussion should be convened in this case as soon as practicable.

Constitution of Tribunal:
Chairman (sitting alone):		Mr M G O’Brien

Appearances:

The claimant was represented by Mr S McGrath, P A Duffy & Company, Solicitors.

The respondents were represented by Mr P Foster, of Counsel, instructed by McCartney & Casey, Solicitors.
				
The issues to be decided

1.	The issues to be decided were as follows:-

(i)	Whether the tribunal has jurisdiction to entertain the claimant’s complaint of unfair dismissal in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting the claim.

(ii)	Was the claim for sex discrimination presented within the specified time limit?

(iii)	If not, is it just and equitable, in all the circumstances of the case, for an industrial tribunal to consider the claim despite the fact that it is out of time?

Sources of evidence

2.	The claimant gave evidence in support of her claims

3.	The tribunal heard submissions from Mr Foster on behalf of the respondents.

The contentions of the parties

4.	By her claims presented to the tribunal on 19 December 2005, the claimant asserted at Section 5.5 that she had put her complaint in writing to the respondents on 28 June 2005.  At Section 6.1 of the form, the claimant indicated that her employment ended on 13 June 2005.  At Section 7.1 of the claim form, the claimant alleged that on 29 May 2005 she had been accused of being under the influence of alcohol whilst on duty as a general manager, and that the first-named respondent had only interviewed selected employees and failed to interview other relevant members of staff.  She further alleged that her job had been given to another employee before the investigation was properly concluded, that she did not receive the statements made against her, and that she was not permitted representation by her trade union at the hearing of the complaint.  At Section 8.1 of the claim form, the claimant asserted that she considered she had been subjected to unlawful sex discrimination.  At Section 12.1 of the claim form, the claimant stated:-

“At the time I was on medication from my doctor.  That medication was changed by a locum, which I believe was the cause of my appearing to be ‘intoxicated’.  I obtained a letter from my doctor for the appeal, stating this.  Other members of staff have in the past been intoxicated at work, without being disciplined.”

5.	The respondents’ response was presented on 1 February 2006.  At Section 3.6 thereof, the respondents asserted that the dismissal and disciplinary procedure was concluded on 9 August 2005 when the claimant’s appeal against her dismissal was heard and determined by the Chairman of the respondent.  The decision of 13 June 2005 was affirmed by the Chairman by letter dated 10 August 2005.  At Section 4.1 the employment details given by the claimant were affirmed as correct.  At Section 4.6 of the response, it is stated that the claimant was paid until 17 June 2005.  At Section 6.1 of the response, the respondents asserted the claimant was dismissed by letter dated 13 June 2005, and she appealed this decision to the respondent Chairman who heard the appeal on 9 August 2005 and affirmed the dismissal by letter dated 10 August 2005.  The respondents thus asserted that:-

1.	The claimant’s claim has thus not been brought either within three months of the termination of her employment being 13 June 2005 or further within three months of the determination of her appeal as the final stage of the disciplinary and grievance procedure of the respondent. The claimant’s claim is thus out of time …

3.	The respondents further investigated, obtained and considered evidence from the claimant’s General Practitioner including speaking to the claimant’s GP directly…

 The tribunal found the following facts

6.	At the outset of the hearing, Mr McGrath conceded that the claims are out of time.  He requested the tribunal to exercise its statutory discretion under Article 145(2) (b) of the Employment Rights (Northern Ireland) Order 1996 [‘the 1996 Order’] and Article 76(5) of the Sex Discrimination (Northern Ireland) Order 1976                    [‘the 1976 Order’]. 

7.	The tribunal finds the claimant’s employment ended on 13 June 2005.  The claimant was raped on 18 June 2005.  The claimant conceded there was no impediment to her presentation of her claims to the industrial tribunal from 13 - 18 June 2005.  This sexual assault had a serious affect upon the claimant, and she was prescribed Effexor, Diazepam, Propranadol and Zopiclone (all of which the tribunal understands to be sedative prescription medication).  Despite this, the claimant was able to attend the appeal hearing on 9 August 2005.  She was represented at this appeal hearing by her shop steward.  She did not instruct those assisting her at that stage to present her claim to the industrial tribunal. 

8.	The claimant was hospitalised a number of times from June to 19 December 2005.  She was an in-patient overnight on each of these occasions.  These admissions were on foot of suicide attempts by the claimant, as she could not cope with the sexual assault.  The claimant had attempted to end her own life by jumping off the Foyle Bridge.  She was apprehended by the police, and brought to Gransha Hospital for three weeks.  The claimant was discharged on each occasion and was prescribed the sedatives referred to above. 

9.	Medical records show that the claimant was admitted to Altnagelvin at 3.23 on 18 July 2005, at 1.55 on 22 August 2005, at 3.42 on 23 October 2005, and 3.34 on 22 Janaury 2006.  Throughout this time, the claimant was able to liaise with the police, who were investigating the sexual assault on her.  However, the police initiated these contacts.  The claimant was able to go to the Care Unit following the assault.  There is no evidence before the tribunal the claimant was able to pursue a claim for criminal damage, or to initiate contacts with her solicitor about such matters.  The claimant was able to attend counselling following the sexual assault, to telephone people, and to carry out day-to-day activities.  However, she was unable to go and claim benefits during the time from 18 June – 19 December 2005.  Her claim to Income Support was made for her by a supporter from the Steer Mental Health Service and she was advised in this regard by Mr Pat Ramsay from the SDLP office.  The claimant was referred to Steer Mental Health by either the police or by her doctor.  The claimant did not mention the loss of her job to Mr Ramsay.  The claimant went to Victim Support and Nexus during the period from 18 June – 19 December 2005.  In the period 18 June – 19 December 2005, the claimant did try to contact Mr Mulholland of her trade union, but he was off sick.  By December 2005, the claimant’s daughter was getting married.  The claimant was able to go to Manchester with her sisters for an overnight trip in November 2005.  Her daughter made all the travel arrangements and packed her suitcase.  Up until 19 December 2005, the claimant was trying to ‘get her life back together again’.  The sexual assault also had a profound affect on the claimant’s family; her husband left her after the attack, and her son and daughter were prescribed medication.  By December 2005, she was feeling a little better as a result of the counselling she received. 

10.	The claimant made another suicide attempt in Janaury 2006, and was again hospitalised for three weeks.

11.	Mr McGrath was instructed in this matter on 16 December 2005.  The claimant told her solicitor about the suicide attempts on 20 March 2006.  However, on the first day of the hearing – 20 April 2006 – there was no corroborating medical or other evidence before the tribunal of these suicide attempts.  The tribunal determined on that occasion that it required such corroboration before it determined the issues before it, and adjourned the pre-hearing review for that reason.  The tribunal reserved the issue of costs for 20 April 2006.

12.	The tribunal reconvened on 13 October 2006.

13.	By 31 May 2006, Mr McGrath supplied various medical reports that were not contested by the respondent at the reconvened hearing on 13 October 2006.  The report of Jim Doherty (Social Worker [Mental Health] with Foyle Health & Social Services Trust) dated 22 May 2006 establishes that the claimant was:-
	
	 “…subjected to a double rape by two men as she was walking home one evening after visiting a relative.  As a result of this very serious assault, Mrs Wilson has been diagnosed as having Post Traumatic Stress Disorder, which is an extremely debilitating psychiatric condition which results in symptoms such as depression, anxiety states including panic attacks, nightmares and flashbacks about the assaults …. Mrs Wilson’s depression is so severe that she continues to have suicidal thoughts and in fact she has made several attempts to take her own life following the assaults in June last year.  She has had two admissions to Gransha Psychiatric Hospital, the first on 18 July 2005 and the second on 23 January 2006 …  I am genuinely concerned about Mrs Wilson’s continued low mood and her persistent suicidal ideation.  I have again today discussed with her the possible need for a further period of admission to Gransha Hospital in order to provide her with 24 hour care and supervision, as her mood remains so low …

… In addition to these assaults, she has had to try to cope with the recent break-up of her marriage …

Mrs Wilson has been unable to work since the assaults occurred since they have turned her life ’upside-down’ and they continue to cause her considerable emotional distress.  In the period following the assaults, she would not have been in a fit state to deal with other matters in her life…”.

14.	Further medical records disclosed by Mr McGrath establish that on 9 December 2005 the claimant was referred to hospital because of ‘suicidal ideation’, and the notes record that the claimant:-

“Crys (sic.) constantly, breaks down, in tears, panic attacks, hides, and sleeps under the bed at times.  Paranoid – trusts nobody … Reports good mental health prior to an attack several weeks – tried suicide last Wednesday … Sometimes does regret that her suicide attempt has failed & feels unable to pick herself up since the attack”.

15.	A medical report of Dr Mousun Odumade (Senior House Officer: Foyle Health & Social Services Trust) dated 20 February 2006, refers to the claimant’s admission to hospital on 23 Janaury 2006.  On that occasion, the claimant had attempted to overdose on medication.  It is stated that, upon admission and treatment, the claimant’s mood ‘improved gradually.  Her mood lifted’. 

16.	A letter from Mr Pat Ramsay MLA, dated 28 April 2006, states that he has known the  claimant for 20 years, and confirms that the claimant has been ‘badly traumatised … with mental health problems. … Due to her vulnerability, I did visit Kathleen around July 2005 on several occasions at her home … when she clearly was in no fit state to come to my office’.

17.	A report, dated 17 October 2005, from Dr Rajesh (Senior House Officer: Foyle Health & Social Services Trust) states the claimant ‘has had her ups and downs, her energy is okay, history of anhedonia, poor sleep and poor appetite. Her memory and concentration is poor, self-esteem low’.

18.	Having received documentary evidence, the tribunal finds the respondents’ costs for 20 April 2006 are £734.54 (inclusive of VAT).

19.	The second-named respondent left the employment of the first-named respondent in the summer of 2006, and is now working in the Republic of Ireland.  On his behalf, Mr Foster could not point to any specific prejudice should the tribunal exercise the statutory discretions afforded by the 1996 and 1976 Orders in the Claimant’s favour.

Applicable Law

20.	The law applicable to the claimant’s complaint of unfair dismissal is provided by Article 145 of the 1996 Order. Article 145(2) of the 1996 Order provides:-

145(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 established that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
	
21.	Article 76(1) and (5) of the 1976 Order provides:-

76.- (1)	An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.

			…

(5)	A court or tribunal may nevertheless consider any such complaint … which is out of time if, in all the circumstances of the case, it considers it is just and equitable to do so.

22.	Rules 38 - 48 of Schedule 1 to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (Northern Ireland) 2005 [‘the 2005 Rules’] provide the tribunal with power to make an Order for Costs.

23.	Rule 10 of Schedule 1 to the 2005 Rules provides the tribunal with power to direct the convention of a Case Management Discussion.

The decision of the tribunal

24.	It is conceded that that claimant’s employment ended on 13 June 2005, and that the claims are out of time.  To comply with Article 145(2) (a) of the 1996 Order, and Article 76(1) of the 1976 Order, the claims should have been presented by 13 September 2005.  They were not presented until 19 December 2005, and are thus out of time. 

25.	The tribunal determines the second question at Paragraph 1(ii) above in the negative; the claim of unlawful sex discrimination was not presented within the specified time limit provided by Article 76(1) of the 1976 Order.

26.	The claimant was not constrained from presenting her claim from 13 June 2005 – 18 June 2005, notwithstanding that she was pursing an internal appeal during that time. 

27.	Following the serious sexual assault on the claimant on 18 June 2005, her mental health was seriously affected, and she has attempted suicide on a number of occasions both before and after the presentation of her claims.  These admissions were on 18 July, 22 August and 23 October 2005 and on 22 - 23 January 2006.  The claimant was unable to claim benefit in person during this time, was reclusive, but was able to carry out day-to-day activities and telephone people.  She was referred for counselling, and this did ameliorate her condition sufficiently to allow her to travel to Manchester in November 2005.  However, the fact that her travel arrangements and packing had to be completed by her daughter is a measure of how dependent on others she was at that time.  This dependency was not assisted by the non-availability of Mr Mulholland sometime during the period from 13 June 2005 to 19 December 2005.  The claimant was also struggling with the break-up of her marriage owing to the sexual assault during the same period.  Although Mr Doherty is not a psychiatrist, there is no contradictory evidence to counteract his diagnosis of Post Traumatic Stress Disorder.  The tribunal determines that, up to – and beyond – 19 December 2005, the claimant was severely depressed, and was admitted to the psychiatric unit of Gransha Hospital on 18 July 2005 and 23 Janaury 2006.  The evidence from Mr Doherty is stark; the claimant was not in a fit mental state to deal with other matters in her life.  This state of poor mental health continued until late 2005.  The report of Dr Rajesh’s evidences that on 17 October 2005 the claimant had a history of anhedonia, poor sleep and poor appetite, with impaired memory, poor concentration and low self-esteem.  The referral note of 9 December 2005 also establishes the claimant had recurrent panic attacks and was paranoid and reclusive at that time.  The evidence from Mr Pat Ramsay MLA also establishes that the claimant was so inhibited from going out and attending to her affairs that he had to go to her home by way of domiciliary visit.  Her condition appears to have deteriorated again in mid-Janaury 2006, necessitating a further admission to Gransha on 23 Janaury 2006, following an attempted overdose.  This is evidenced by the report of Dr Odumade dated 20 February 2006.

28.	It has been well established in the case of Walls Meat Co. Ltd v. Khan [1979] ICR 52, CA that illness is a matter which the tribunal should have regard to in considering its statutory discretion to extend time. In Walls, Lord Justice Brandon said:-
	
The performance of an act … 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 …

29.	The tribunal determines that the evidence adduced by the claimant of her severe depressive reaction the sexual assault on her is compelling.  Pursuant to Article 145(2) (a) of the 1996 Order, the claim of unfair dismissal was not presented by 13 September 2005.  Pursuant to Article 145(2) (b) of the 1996 Order, the tribunal determines that the claimant’s mental health was such that it was clearly was not reasonably practicable for her to have presented her claim to the tribunal by 13 September 2005.  The tribunal has had regard to the second stage of the test provided by Article 145(2) (b) of the 1996 Order, and determines that – in spite of her fluctuating mental health at that time – the claimant presented her claim within a further reasonable period from 13 September 2005.  This reasonableness is evidenced by the fact that the claim was presented on 19 December 2005, when the claimant was paranoid on 9 December 2005 and had to be admitted to Gransha again on 23 Janaury 2006, following a further suicide attempt.

30.	Accordingly, the tribunal determines that it has jurisdiction to entertain the claimant’s complaint of unfair dismissal, and answers the question put to it at Paragraph 1(i) above in the affirmative.

31.	Turning to the second statutory discretion admitted by Article 76(5) of the 1976 Order, the tribunal is mindful that this is a separate and wider discretion than that afforded by Article 145(2) (b) of the 1996 Order. The Courts have in the past exercised this discretion more liberally than in unfair dismissal cases.  Indeed, in the case of Stott & Others v. Prison Service HMP Wakefield, Simon Brown LJ stated that this discretion “could not have been wider”.  It follows from the tribunal’s reasoning in respect of the narrower test of ‘reasonable practicability’ and ‘reasonableness’ for the unfair dismissal claim, that the tribunal is satisfied that the claimant’s mental health and family status precluded her from presenting her claim within the statutory time limit set down by Article 76(1) of the 1976 Order.  The tribunal is permitted to consider this mental health and family status, and in this respect has had regard to Hutchinson v. Westwood Television Ltd.  The respondents were unable to establish any particular prejudice to them, and in particular to the second-named respondent, should the tribunal exercise the just and equitable jurisdiction in the claimant’s favour.  Accordingly, the evidence overwhelmingly supports the argument that - in all the circumstances - it is just and equitable for the tribunal to extend time to 19 December 2005 to allow the claimant’s complaint of unlawful sex discrimination to proceed. The tribunal thus answers the third question put to it at Paragraph 1(iii) in the affirmative.

32.	The tribunal reserved the issue of the respondents’ costs for 20 April 2006.  The claimant’s solicitors were instructed on 16 December 2005, and thereafter the claim was presented within three days.  The claimant told Mr McGrath of her suicidal ideation on 20 March 2006.  There was no application to adjourn the hearing on 20 April 2006 owing to the fact the claimant was attempting to obtain corroborative medical evidence.  That such evidence was essential to the determination of these issues is evident from the tribunal’s reasoning above.  The tribunal had to adjourn the hearing on 20 April 2006 because there was no corroborative evidence before it of the claimant’s mental health.  The corroborative evidence was forthcoming on 31 May 2006, and the tribunal is grateful to Mr McGrath for his expeditiousness in this regard.  However, pursuant to Rule 40(3) of Schedule 1 to the 2005 Rules, the tribunal regards the claimant’s failure to adduce this evidence in time for the hearing on 20 April 2006 as unreasonable conduct of that proceeding, and accordingly accedes to the respondents’ submission for costs for 20 April 2006 in the amount of £734.54 inclusive of VAT.

33.	Since the claimant’s claims are now being allowed to proceed to a substantive hearing, the tribunal further directs of its own initiative that it would be appropriate to convene a Case Management Discussion in this matter, pursuant to Rule 10 of Schedule 1 to the 2005 Rules.  The tribunal directs that this Case Management Discussion should be convened as soon as possible.

34.	No further or other Order is now made.

Chairman:

Date and Place of Hearing:  20 April & 13 October 2006, Limavady

Date decision recorded in register and issued to the parties: