THE INDUSTRIAL TRIBUNALS

CASE REF:  175/07

CLAIMANT:			Catherine Blake-Knox

RESPONDENT:		Valuation and Lands Agency

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant has raised a grievance with the respondent.  Her claim of sex discrimination was presented outside the statutory time limit but the tribunal extends time to 23 January 2007 to enable the claimant’s claim to be accepted.

Constitution of Tribunal:
Chairman (sitting alone):		Mr B Greene

Appearances:
The claimant was represented by Mr C Hamill, of counsel, instructed by the Equality Commission.
The respondent was represented by Mr A Colmer, of counsel, instructed by the Departmental Solicitor’s Office.

SOURCES OF EVIDENCE

 1.	The tribunal heard evidence from the claimant.  The respondent elected not to adduce any oral evidence.  The tribunal also received five bundles of agreed documents amounting to 116 pages and two bundles of the appropriate law and a number of cases amounting to 54 pages.

THE CLAIM AND DEFENCE

 2.	(a)	The claimant claimed that she had suffered discrimination on the grounds of sex.  The respondent denied the claim.  It further asserted that the claim was outside the prescribed time limits for presenting a claim and that the claimant had not satisfied the requirements of lodging a proper grievance.

	Accordingly a pre-hearing review was listed for 5 June 2007 to consider two preliminary issues.

THE ISSUES

 3.	(a)	Whether the claimant has raised a grievance with the respondent and presented her complaints of sex discrimination to the tribunal within the statutory time limits.

	(b)	If not, whether the tribunal has jurisdiction to consider these complaints.

FINDINGS OF FACT

 4.	(a)	The respondent employed the claimant from 1 March 1978 and she currently holds the position as a Valuer I (Deputy Principal Grade).

	(b)	In early 2001 the claimant was in the Information Systems Unit where she was required to take the lead role in business-input to the development of a new core evaluation system.  At that time she was asked to take on the project management of a new AVGEN system which she did.  The AVGEN development was not completed due to a lack of resources of the respondent and an understanding of the complexity of the system by the developer.

	(c)	In early 2006 the claimant made a complaint of bullying against her managers [   GOB    ] and [    PA        ].                                                    BG

	(d)	On 2 March 2006 the claimant was approached by [      DA        ] a VLA
                      manager and asked if she was willing to take on the project manager role with the AVGEN project.  The claimant indicated her willingness so to do and was advised by [   DA   ] that it would have to be endorsed by senior management.                                                                                            BG

	(e)	On 3 March 2006 at a meeting with [   AB     ], the Assistant Commissioner of Valuation, the claimant was told that in relation to the AVGEN project there was no role for VLA.  The claimant understood that to be no role for her also as a member of VLA.                                                                                 BG

	(f)	On 9 March 2006 the claimant considered a lateral transfer of job to improve her career prospects.  

		At a senior management meeting on 22 March 2006   [    AB     ] was directed to approach the claimant regarding the project management of the AVGEN project.  He did not do this.                                                            BG

	(g)	On 30 March 2006 the claimant accepted a post in the Central Procedure Directorate.

	(h)	On 31 March 2006 the respondent was still seeking someone to manage the AVGEN project.

	(i)	On 3 April 2006 [     GOB      ]  wrote to [     DA      ] enquiring how the AVGEN project was to be taken forward and referring to the urgent necessity to consider a transfer of skills from the claimant to a suitable person.  A copy of that e-mail was sent to [    AB     ].                                                          BG

	(j)	The claimant met with [   AB     ]on 4 April 2006 regarding her departure and no mention was made to her of the AVGEN project.                                   BG

	(k)	On 24 April 2006 the claimant started in her new job.

	(l)	On 10 April 2006 the respondent was still looking for a project manager for the AVGEN project.

	(m)	At an OMG meeting on 12 April 2006 in relation to the SDLD and AVGEN issues [     AH     ] sought reassurances that with the departure of the claimant these projects would be taken over by someone else.  [   AB   ] recorded this would be led by the business area to ensure continuity.       BG

	(n)	On 27 April 2006 at a Senior Management meeting attended by [    AB     ] the claimant was still being discussed in connection with the project management role.                                                                                        BG

	(o)	At further OMG meeting held on 10 May 2006 it was reported that a project manager for the AVGEN project had still not been identified.  It was also indicated that HELM the developer were anxious to proceed with the AVGEN project.

	(p)	On 7 and 8 June 2006 discussions were still going on about the priority of identifying someone for the AVGEN project as a manager.

	(q)	It was reported at an OMG meeting on 14 June 2006 that an AVGEN manager had been identified, although the identity of the individual was not revealed.

	(r)	On 28 June 2006 Norman Taylor sent an e-mail to [     GS    ] in which he said that [     SD    ] had been appointed as project manager.                  BG

(s)	By mid June 2006 the claimant was still trying to progress her grievance.

(t)	At a meeting with her trade union representative on 25 July 2006 the claimant was informed that [   SD   ] had been offered the post of project manager in the AVGEN project.  It appeared that he did not accept the offer by reason by his lack of qualifications and experience.                             BG

(u)	On 26 July 2006 the claimant wrote to the respondent’s Chief Executive regarding her grievance.  She also mentioned that she had been informed that someone not qualified in PRINCE II and with no experience of project work and who was a member of the staff of VLA had been offered the post of project manager of the AVGEN project.  She further stated that she believed that the person had turned down the offer by reason of lack of qualification and lack of experience.  She reminded the Chief Executive that she had the qualification and the experience and had also worked previously with the AVGEN system.

(v)	On 18 August 2006 the Chief Executive wrote to the claimant in relation to her grievance and also to her comments about the AVGEN project.  He informed her that on 2 March 2006 the door had not been closed to her participation in the AVGEN project; that on 3 March [   AB     ]did not have authority to make a decision in relation to the position of project manager; that on 22 March 2006 [   AB     ] was considering the practicalities of the claimant’s involvement; that in April 06 once the claimant had moved he did not consider the AVGEN project to be comparable to or relevant to the claimant’s career move; and that on 18 August the claimant’s involvement in the AVGEN project could still have been considered.                                 BG

(w)	In August 2006 the claimant consulted with the Equality Commission and was told by them, by letter of 16 August 2006, that there was a three month time limit within which she had to bring her proceedings for discrimination.  On 30 August the claimant also consulted with a solicitor who advised her that she had six months within which to bring her claim of sex discrimination.

		In September 2006 the claimant and her union representative were on holidays at different times throughout the month.

	(x)	On 27 October 2006 the claimant wrote a letter to [    NW     ], the Chief Executive of VLA, in which she set out her concerns in relation to her grievance and the offering of the project manager role in the AVGEN project to an unqualified male with no experience.                                                BG

		The Chief Executive replied by letter of 1 November in which he indicated that the AVGEN project manager role had now been filled with the recruitment of an external consultant for a fixed and short-term.

	(y)	The claimant’s 16 year old son was involved in a serious road traffic accident in mid-December 2006 and was hospitalised until 27 December 2006.  Thereafter, he required constant attention at home and the claimant applied herself to this matter until mid-January 2007.

	(z)	On 23 January 2007 the claimant presented her claim to the Office of the Industrial Tribunals and Fair Employment Tribunal.  The respondent in its response disputes the claimant’s claim but also alleges that the complaint is not brought within the appropriate times and a proper grievance has not been lodged within the appropriate time.

THE LAW

 5.	(a)	An industrial tribunal shall not consider a complaint of sex discrimination unless it is presented to the tribunal before the end of the period of three months beginning with when the act complained of was done.  (Article 76 (1)(a) of the Sex Discrimination (Northern Ireland) Order 1976).

	(b)	A tribunal may nevertheless consider any such complaint which is out of time if in all the circumstances of the case it considers that it is just and equitable to do so (Article 76 (5) of the Sex Discrimination (Northern Ireland) Order 1976).

	(c)	Any act extending over a period of time shall be treated as done at the end of that period Article 76 (6) of the Sex Discrimination (Northern Ireland) Order 1976.

	(d)	An employee bringing a claim of sex discrimination must present a grievance in writing to the employer and wait at least 28 days before presenting his claim to an industrial tribunal.  (Article 19 of the Employment (Northern Ireland) Order 2003).

	(e)	Where a complaint of sex discrimination is made after the three month period and the complainant has complied with the applicable statutory grievance procedure the three month period for lodging a claim is extended for a period of three months.  (Regulation 15 (1)(b), and (3)(b) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004).

	(f)	A complainant satisfies the requirements of lodging a grievance with his employer if the employer, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised.  (Canary Wharf Management Ltd -v- EDEBI 2006 IRLR 416).

	(g)	Article 19 (2) of the Employment (Northern Ireland) Order 2003, which prevents an employee from presenting a complaint to an employment tribunal were Step 1 of the statutory grievance procedure was not complied with until “more than one month after the end of the original time limit for making the complaint”, does not have the effect of displacing the tribunal’s discretion to extend time in discrimination cases on just and equitable grounds (BUPA Care Homes Ltd -v- Cann [2006] IRLR 248).

APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES

 6.	In approaching this matter the tribunal bears in mind that the respondent elected not to adduce any oral evidence.  It is clear from the response and the papers in this case that many of the allegations and assertions made by the claimant are disputed by the respondent but have not thus far been challenged in evidence.  However in considering this preliminary issue and for the purposes of the Pre-Hearing Review the tribunal accepts the claimant’s evidence unless the documents show her evidence could not be correct or her evidence was not credible.  

 7.	Harvey on Industrial Relations and Employment Law states at Volume L paragraph [559]

		“What these and other decisions show is that there is no intrinsic difference between a “continuing” and a “one-off” act; and classification is thus a matter which has to be decided by the employment tribunal in the exercise of its discretion.  At the end of the day the process of classification is not one that can be scientifically proved to be correct.”

	Harvey states further at paragraph [562]

		“In deciding whether a particular situation gives rise to an act extending overtime it will also be appropriate to have regard to 

	(a)	the nature and conduct of the discriminatory conduct of which complaint is made, and (b) the status or position of the person responsible for it.   …; so to discriminatory acts by a person in a position of authority may be more likely to create a regime of discrimination than similar conduct by a person of lower authority within an organisation.”

 8.	The tribunal is satisfied that the allegations made by the claimant viz-a-vis discrimination, for present purposes constitute a “continuing act” (Article 76 (6) of the Sex Discrimination (Northern Ireland) 1976) or amount to “an ongoing situation or continuing state of affairs in which members of the defined group were treated less favourably” (Hendricks -v- the Metropolitan Police Commissioner [2003] IRLR 96, CA).

	The factors that give rise to the ongoing discriminatory state of affairs or continuing act are:- 

	(a)	on 3 March [     AB       ], the assistant commissioner with respondent, told the claimant that there was no role for VLA person in the AVGEN project.  The claimant logically concluded that that meant that there was no role for her.                                                                                                              BG

	(b)	On 22 March 2006, following a senior management meeting, [     AB       ] was to approach the claimant regarding the project management of the AVGEN project but he did not do so.

	(c)	On 3 April 2006 [     GOB      ] wrote an e-mail to [      DA      ] suggesting that, “it is necessary to consider urgently the need to “skills transfer/handover” the business knowledge re AVGEN from Cathy [the claimant] to some suitable candidate.”  A copy was sent to [   AB     ].       BG

	(d)	On 27 April 2006 the claimant was still being discussed at senior management meetings attended by [     AB       ] in relation to the management role with the AVGEN project.                                                 BG

	(e)	There was an ongoing discussion and pressure within the respondent about filling the job as project manager on the AVGEN project.

	(f)	On 28 June 2006 [     SD    ] was approached regarding the job of project manager.  He is a member of staff with the respondent and does not process the qualifications and experience that the claimant informed the tribunal were required for the position of project manager of the AVGEN project.            BG

 9.	The date of the conclusion of the continuing act therefore or the ongoing state of affairs is 28 June 2006.  The statutory time limit of three months within which a claim for sex discrimination is to be brought expired on 28 September 2006.  By that time the claimant had not brought a claim for sex discrimination.  

10.	The claimant’s letter of 26 July 2006 does not satisfy the requirements for a written grievance.  It is not clear from that that the claimant is claiming sex discrimination.

	The letter from the claimant of 27 October 2006 constitutes a written grievance in that the respondent, on a fair reading of the letter and having regard to the particular context in which it is made could be expected to have appreciated that there is a complaint of sex discrimination.  (Canary Wharf Management Ltd -v- EDEBI).

11.	The three months for lodging a claim of sex discrimination is extended by Regulation 15 (1) (b) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 where a claimant sends her grievance within the four months required.  The time for lodging her claim is therefore extended by three months until 29 December 2006.

12.	The claimant’s claim is late i.e. it is outside the statutory six months period.  But the discretion to extend time on a just and equitable ground still applies (BUPA Care Homes Ltd -v- Cann [2006] IRLR 248).

13.	The tribunal exercises its discretion to extend time to the claimant to 23 January 2007 to enable her claim to be accepted.  The tribunal finds that it is just and equitable in the circumstances of this case to extend time.  In so concluding the tribunal took into account the following matters:-

	(a)	There is little or no prejudice to the respondent.  It was aware of the claimant’s interest in the job, her annoyance at not getting the job and a complaint of sex discrimination on 27 October 2006.

	(b)	Should time not be extended the claimant’s claim will be dismissed.  She does not appear to have any other remedy.

	(c)	The claimant received the Chief Executive’s response to her letter of grievance of 27 October 2006 by letter of 1 November 2006.

		The claimant’s son was involved in a serious road traffic accident in mid December 2006.  He was hospitalised until 27 December 2006.  Thereafter he was at home.  The claimant was pre-occupied from mid December until mid-January 2007 with her son’s illness, hospitalisation and his subsequent care at home.

(d)	The claim was lodged 25 days late.

	(e)	The claimant knew of the six month time limit from August 2006 but it may not have been clear to her from when time began to run.

14.	The claimant has raised a grievance and presented it within time.  Her complaint of sex discrimination is late.  The tribunal extends time to 23 January 2007 to enable the claimant’s claim to be accepted.

	Accordingly the tribunal has jurisdiction to consider the claimant’s complaint of sex discrimination.  This claim may now proceed to hearing.

Chairman:

Date and place of hearing:	5 June 2007, Belfast.

Date decision recorded in register and issued to parties: