Lennox vs Steven Ross,Department of Finance
| Jurisdiction | Northern Ireland |
| Judgment Date | 07 October 2009 |
| Respondent | Steven Ross,Department of Finance |
| Docket Number | 00682/08IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 00682/08
CLAIMANT: Zara Lennox
RESPONDENTS: 1. Steven Ross
2. Department of Finance and Personnel
DECISION
The unanimous decision of the tribunal is that the claimant’s claim is out of time and in all the circumstances of the case it is not just and equitable to extend time to consider the claimant’s claim. The claim is therefore dismissed.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mr J Lyttle
Mrs T Madden
Appearances:
The claimant was not present and was not represented.
The respondents were represented by Mr P Coll, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.
BACKGROUND
1. (i) This case was the subject of a number of Case Management Discussions. The first Case Management Discussion was held on 24 September 2008 when the claimant was represented by Mr John Dallat, MLA. At a further Case Management Discussion on 4 February 2009, the claimant was again represented by Mr Dallat and the case was timetabled for hearing from 14 – 18 September 2009. A further Case Management Discussion was held on 15 June 2009. On this occasion the claimant was represented by Mr M McEvoy, Barrister-at-Law, instructed by the Equality Commission. The Equality Commission subsequently came off record for the claimant in or about August 2009. A further Case Management Discussion was held on 7 September 2009. The claimant was not present and was not represented on that occasion. However, the record of proceedings was e-mailed to her. The claimant did not respond in any way to the e-mail. Correspondence was forwarded to the tribunal by the respondents’ solicitor dated 11 September 2009 which states, inter alia;-
“I would advise that it has not been possible to agree the bundle with the Claimant. A draft index was sent to her by email and post but, despite telephone messages and a further email, no response has been received.
As per my letter to the Tribunal yesterday, in the absence of a response from the Claimant, a bundle was prepared and delivery of same attempted at the Claimant’s home in Coleraine. However, the delivery person was advised that the Claimant had moved house. The position remains that we have still had no contact from the Claimant regarding the case”.
Both the respondents’ solicitors and the tribunal office had attempted to contact the claimant but without success.
(ii) Rule 27 of the Industrial Tribunal (Rules of Procedure) 2005 states as follows:-
“(5) If a party fails to attend or to be represented (for the purposes of conducting the parties’ case at the hearing under Rule 26) at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.
(6) If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties.”
Having carefully considered all of the circumstances, consistent with its overriding objective, the tribunal decided against the background of the claimant’s clear knowledge of the hearing dates, and the absence of any explanation for her non-attendance, that the proceedings should be disposed of and that any information in the tribunal’s possession made available to it by the parties should be considered, including the claimant’s claim to the tribunal, and the claimant’s witness statement contained in a bundle of documentation presented to the tribunal on the respondents’ behalf.
(iii) The claimant had presented a claim to the tribunal on 13 February 2008. However, this claim was rejected as the claimant had not raised the subject matter of the complaint in writing to the respondent and waited 28 days prior to presenting her claim to the tribunal office. The claimant had named Mr John Dallat as a representative in the claim form. Her claim was subsequently presented to the tribunal on 1 May 2008 and accepted.
THE CLAIM
2. The claimant claimed that she had been discriminated against on the ground of sex by her line manager and that the said line manager subjected her to sexual harassment. These allegations were denied by the respondents.
ISSUES BEFORE THE TRIBUNAL
3. The issues before the tribunal, derived substantively from the Case Management Record of Proceedings dated 24 September 2008, were as follows:-
(i) With regard to the complaint of sex discrimination, has the claimant complied with Article 19(4) of the Employment (NI) Order 2003 (“the 2003 Order”) concerning the requirement to set out the grievance in writing and send it to the employer before presenting a complaint to the Industrial Tribunal?
(ii) Are the claimant’s claims of sex discrimination and sexual harassment out of time, and if so, should time be extended on a just and equitable basis to admit the claim?
(iii) Subject to paragraphs (i) and (ii) above, was the claimant the subject of sex discrimination and sexual harassment contrary to the provisions of Article 3(2)(a) and 6A respectively of the Sex Discrimination (Northern Ireland) Order 1976, as amended (“the 1976 Order”)?
(iv) Should the answer to issue (iii) be in the affirmative, can the respondent Department rely upon the statutory defence and/or is it liable for those unlawful actions of the line manager?
FACTUAL ISSUES
4. At the Case Management Discussion held on 24 September 2008, the following factual issues were also agreed:-
(i) Did the claimant’s line manager specifically request a young female to be brought into the office?
(ii) Did an incident occur between the claimant and her line manager in the store room on 30 April 2007?
(iii) Was the claimant subjected to bullying and harassment upon her return to work by the line manager?
SOURCES OF EVIDENCE
5. The tribunal considered the claimant’s claim form. It also admitted and read the claimant’s witness statement subject to the appropriate weight to be attached to it in the claimant’s absence. On the same basis, the tribunal also admitted and read the witness statements of Gillian McCrory, Deputy Principal Statistician, and Jacquie Hyvart, Head of Human Resources for the second-named respondent. The tribunal heard evidence from the first-named respondent together with, on behalf of the second-named respondent, Walter Stafford, Deputy Principal in Corporate Services, Gerard McGrath, Staff Officer, Naomi O’Neill, Assistant Statistician, John McCann, Eilish Murtagh, Deputy Principal Statistician, Deirdre Houston (Staff Officer at the material time), James Anthony McKibben, Head of Corporate Services (Business and Finance) at the material time, Laura Morgan, Acting Staff Officer at the material time, and Lindsey Balmer, Deputy Principal and Equal Opportunities Officer. The claimant was not present to contradict the oral evidence by way of cross-examination. The tribunal also raised questions, as appropriate.
PRELIMINARY ISSUES
6. (1) Article 19(4) of the 2003 Order states as follows:-
“(4) An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies if―
(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 has been complied with, and
(b) the day on which the requirement was complied with was more than one month after the end of the original time limit for making the complaint.
(2) Regulation 15(1)(b) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the Regulations”), provides that the normal time limit for presenting a complaint listed in Schedules 2 or 3 of the 2003 Order (which includes claims of sex discrimination) is extended for a period of three months in two circumstances set out in Regulation 15(3)(a)(b) as follows:-
(a) Where the employee presents a complaint to the tribunal within the normal time limit but has either:-
(i) failed to send a written grievance to the employer at all;...
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