Neutral Citation no.  [1999] 1931

Ref:    

MCCE2764

 

 

 

Judgment: approved by the Court for handing down

Delivered:

21/05/99

(subject to editorial corrections)

 

 

 

      IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

 

                                                                ----------

 

                                             DR GERALDINE FENNELL

 

                                                                    -v-

 

                                              UNIVERSITY OF ULSTER

 

                                                                ----------

 

 

McCOLLUM LJ

 

            Dr Fennell the applicant (appellant) applied for the post of Management Development Officer at the University of Ulster, the respondent, and was interviewed on 8 November 1994.  On 14 November following, she was telephoned by Miss Denise Greatorex the respondent's human resources consultant and told that she would not be offered the position.

            The appellant asked to be told the reasons and was told that she must put that request in writing; she did so in a letter dated that day in the following terms.

                        "When you phoned today to tell me that I would not be offered the subject position, and I asked you to tell me the reasons, you said that I must put that request in writing.

 

                        Please be kind enough to let me know the reasons why my application has not been successful".

            No reply was received to this letter and the appellant wrote again on 19 December 1994, 28 February 1995 and 9 March 1995.  She received a reply dated 22 March and sent further reminders on 23 April and 27 May the latter apparently crossing a letter from the Respondent dated 26 May.  This correspondence is reproduced below.

                        Appellant to respondent                December 19, 1994

                        "When may I expect to receive a reply to my letter dated November 14, 1994, a copy of which I reproduce below?

 

                        In addition to the information that I request in that letter, please let me know the names of the individuals who have been appointed to the subject positions.

 

                        I thank you in anticipation.

 

                        With season's greetings".

           

                        Appellant to respondent                February 28, 1994 (SIC)

 

                        "May I please hear from you in response to my earlier letters, copies of which I reproduce below.

 

                        May I please know the gender of the successful candidate(s)".

 

                        Appellant to respondent                March 9, 1995

 

                        "Further to my letter dated February 28, (mistakenly written 1994, in place of 1995), may I please have a reply by March 17, 1995 to my question about the gender of the successful candidate(s)"?

 

                        Respondent to appellant               March 22, 1995

 

                        "In response to your letter of 9 March 1995, I wish to advise you that our Human Resources Consultant Mrs Denise Greatorex, who dealt with the above vacancy, is currently on annual leave.

 

                        You should expect a reply to your query on her return to work in the week commencing 27 March 1995.

 

                        We thank you for your understanding in this matter".

 

                        Appellant to respondent                April 23, 1995

 

                        "Thank you for replying (yours dated March 22) to my letter dated March 9, 1995.

 

                        As yet, however, I have received no reply at all to my March 9 or earlier letters addressed to Ms Greatorex.

 

                        Could I ask you please to check into this matter for me?  If necessary, please let me know to whom I should write, in order to receive an answer to my queries".

                       

                        Appellant to respondent                April 23, 1995

 

                        "Thank you for replying (yours dated March 22) to my letter dated March 9, 1995.

 

                        As yet, however, I have received no reply at all to my March 9 or earlier letters addressed to Ms Greatorex.

 

                        Could I ask you please to check into this matter for me?  If necessary, please let me know to whom I should write, in order to receive an answer to my queries".

 

                        Appellant to respondent                May 27, 1995

 

                        "May I please have a reply to my letter dated April 23, 1995, a copy of which I reproduce below,

 

                        Respondent to appellant               May 26, 1995

                                                            (apparently posted on 30 May 1995)

 

                        "May I first of all apologise for the long delay in responding to your letters.

 

                        The interview panel were impressed by both your research background and academic qualifications in relation to the personnel specification.

 

                        However, there was no evidence to suggest you had experience in managing revenue budgets which was essential for the post.

 

                        As a result you were marked as below specification on this criterion.

 

                        Unfortunately I cannot discuss the appointment of the successful candidates with you except to say they were marked against the same personnel specification on the basis of their interviews".

           

            On 28 February 1995 the appellant had telephoned the Equal Opportunities Commission who wrote to her on 2 March 1995.

 

            She wrote to the Commission on 16 June 1995 and received a reply on

26 June 1995 to which she replied on 27 June and as a result received the following letter from the Commission dated 3 July 1995.

                        "I refer to the above matter and to your letter to me of 27 June 1995.

 

                        The Commission's advice remains as set out in our letters to you of 2 March and 26 June 1995.

 

                        In relation to your specific query, an employer is not obliged to reveal the gender of the successful candidate to an unsuccessful candidate except in circumstances were such information is necessary to resolve a complaint of unlawful sex discrimination.  Having said that however an employer's consistent refusal to supply an unsuccessful candidate with the gender of a successful candidate could legitimately support the belief of an unsuccessful candidate that he or she had been discriminated against on the grounds of his or her gender.

 

                        Please confirm, at your earliest convenience, whether or not it is your intention to proceed with this matter".

                       

            On 6 July she presented an originating application to the Industrial Tribunal complaining that she had been unlawfully discriminated against by the respondent contrary to the Provisions of the Sex Discrimination Northern Ireland Order 1976.  Notice of Appearance was entered by the Respondent on 25 August 1995 in which inter alia the point was raised that the complaint had been submitted out of time.

            The time limit for such a complaint is, under Article 76(1) of the Order, a period of three months.  The complaint therefore should have been submitted on or before 14 February 1995. 

            The Tribunal published a decision on 13 January 1997 dismissing the application on the grounds that it considered it not to be just and equitable to extend time for the application.

            At a subsequent review hearing the Tribunal held that no grounds existed to justify review. 

            The matter comes before this court by way of case stated, the question for the court being "whether on the facts found by the Tribunal the Tribunal's conclusion that it was not just and equitable in all the circumstances of the case to extend the time limit for presenting the claim was one which the Tribunal properly directing itself could properly have reached". 

            The Tribunal's findings of fact are set out in paragraph 14 of the case stated in the following terms.

            "1.        The tribunal considered the facts, the provisions of Article 76(5) of The Sex Discrimination (Northern Ireland) Order 1976, ("the 1976 Order") the documents submitted by the appellant and the submissions made by and on behalf of the parties and reached the following conclusions:-

 

            2.         The tribunal were mindful for the factors to be taken into account as set out in the case of British Coal Corporation -v- Kebble (1997) IRLR 336 EAT including possible prejudice to either party balanced against the length of time involved in the delay and the reasons for it.

 

                        (i)        The tribunal found that the originating application was not submitted within the time limit set out in Article 76(1) of "the 1976 Order".  The alleged discrimination took place in November 1994 and the originating application was submitted in July 1995, resulting in a delay of some five months.

 

                        (ii)       The tribunal found that the Respondent did not reply to repeated correspondence from the appellant requesting information regarding her failure to be selected for the post and the gender of the successful candidate until a letter dated 26 May 1995 which was sent to the appellant which she received in early June.  This letter informed the appellant of the reasons for her non selection but did not advise her of the gender of the successful candidate.

 

                        (iii)      The Respondents conduct in failing to reply to the correspondence from the appellant was unreasonable and not the conduct one would expect from a responsible employer.

 

                        (iv)      The tribunal found that there was no prejudice to the Respondent in the admission of the late claim.

 

                        (v)       The tribunal found that it was understandable that the appellant did not wish to act without information and it was not made readily available to her until June 1995.  However from March 1995 the appellant knew the steps which she should take to protect her interests, yet she did not act until July 1995.  By June 1995 the appellant had received all the information which the Respondent was prepared to release to her yet she failed to act for a further month.

 

                        (vi)      The tribunal found that the appellant should have acted at an earlier date given the information available to her.  We do not accept that what the appellant described as her "ethical dilemma" justified her failure to submit her originating application until July 1995.  we do not accept that the reasons given for her delay in presenting the claim after she had received advice in March 1995, and especially after receiving additional information in June 1995, were justified for her failure to submit her originating application more promptly.

 

            The Tribunal then set out its reasons for its finding as follows:

 

                        1.         The tribunal considered the reasons given by the appellant for her failure to act more quickly given the fact that she suspected discrimination by the Respondent from an early date.  The tribunal was conscious that its role was to consider whether it was just and equitable in the circumstances of the case to extend time and not whether it was reasonably practicable for the applicant to present her claim.

 

                        2.         The tribunal had sympathy for the appellant in the difficulties which she had obtaining information from the respondent, but we had to consider the appellant's own actions and inactions and balance these against the interests of the respondent.  The tribunal was mindful that time limits are set to enable proceedings to have some structure and of the need for both legal certainty and finality in litigation.  We do not accept that it was necessary for the appellant to have full details from the respondent before she submitted her originating application, bearing in mind that the appellant suspected that she had been discriminated against from the outset, and had to be made fully aware of the time limits as early as March 1995.

 

                        3.         The tribunal took into account the circumstances of the case both in relation to the respondent and the appellant and on balance decided that it was not just and equitable to extend the time limit for presenting the claim.

 

                        4.         The tribunal therefore dismissed the appellant's claim on the basis that it was not just and equitable in the circumstances of the case to extend the time limit for presenting the claim".

 

            Before this court the appellant argues that the tribunal misunderstood the case being made by her in relation to her failure to institute proceedings.  Her case is and was that she could not properly make an allegation of discrimination until she had some evidence to justify that allegation.  The tribunal at 2(v) took the view that she did not wish to act without information and it was not made readily available to her until June 1995.

            However, the failure by the respondent to reply to her correspondence deprived her of the evidence upon which a complaint could be grounded and its letter of June 1994, merely conveyed the purported reason for her failure to be offered the position.

            Her case is that she did not become aware of the existence of any evidence to support her claim until the letter from the Equal Opportunities Commission on 3 July 1995 stating that "an employers consistent refusal to supply an unsuccessful candidate with the gender of a successful candidate could legitimately support the belief of an unsuccessful candidate that he or she had been discriminated against on the grounds of his or her gender".  Her application promptly followed receipt of that letter.  At that date the respondent had still not informed her of the gender of the successful applicants.

            It was therefore extremely difficult for the Tribunal to weigh properly the relevant considerations when on the face of the correspondence upon which it acted it failed to understand the main thrust of the appellant's case. 

            It is inherent in the nature of a case stated that the facts are a matter for the inferior Tribunal and that this court is only concerned with matters of law.

            Where, as in this case, the exercise of discretion is in issue, this court must determine whether the proper principles were applied.

            We have already referred to paragraph 14(2)(vi) of the case stated.  The Tribunal does not identify the "earlier date" on which the appellant "should have acted" or the considerations which would have determined that date or whether or not it lay within the three months period.

            It is not clear from this particular finding whether the Tribunal would have been prepared to allow an extension of time even if the appellant had only been out of time by a matter of days.  No information which could have assisted her in presenting her claim became available between the expiry of the three month period and the letter from the Equal Opportunities Commission of 3 July 1995, after which the application was promptly made. 

            In giving its reasons for its decision the tribunal had stated that "certainly by June 1995, it must have been apparent to the applicant that the information in relation to gender, which she wished to obtain, was not going to be forthcoming and therefore, she would be required to take some other course of action".

            By implying that she took no other course of action at that time the tribunal failed to give due weight to the fact that she had written again to the E.O.C. on 16 June and 27 June.

            The fact of the matter is that the appellant showed no neglect in her interest in pursuing her claim and that her greatest obstacle was the failure on the part of the respondent to reply to courteous and pertinent enquiries.

            It is apparent that the tribunal did not appreciate that the appellant's case sought to justify the entire delay period up until receipt by her of the letter of 3 July.  The letter from the respondent dated 16 June did not provide any evidence to justify proceedings.  Had the Tribunal understood the real significance of the appellant's case on this point it would have had a considerable bearing on its conclusions. 

            The provisions of the Sex Discrimination (Northern Ireland) Order 1976 relating to the period within which proceedings should be brought is Article 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".

            Sub-paragraph 5 of the Article provides as follows:

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

 

            The tribunal is therefore required to apply equitable principles to the question of extending time.  Clearly the statutory time limit is there to be observed and it is for an applicant who is out of time to satisfy the tribunal that it is just and equitable to extend time.

            It appears to us that the tribunal having roundly condemned the respondent for its failure to reply to the appellant's letters then proceeded to put that matter aside when considering the case made by the appellant.

            It appears that the test applied by the tribunal in deciding whether to exercise its discretion was whether the appellant could establish justification for her failure to submit her application within time.  It is noteworthy than in paragraph 14(2)(vi) set out earlier that the tribunal uses the words "justified" and "justification" in the course of that paragraph.  The true test is whether there is a reasonable explanation for the delay and whether the respondent may have contributed to that delay.

            It appears to us that the explanation given by the applicant in this case is consisted with a genuine desire on her part to pursue her legal rights, the progress of which pursuit was thwarted by failure on the part of the respondent to provide information which it would have been perfectly reasonable to provide.

            The tribunal in paragraph 15 of the case stated at sub-paragraph 2 states "we had to consider the appellant's own actions and inactions and balance these against the interests of the respondent".

            In our view the tribunal was applying the wrong test in that exercise.  It would have been appropriate to balance the appellant's "actions and inactions" against the failure of the respondent to reply to correspondence and to supply information and if such a balancing exercise had taken place the appellant would be seen to have the preponderance of merits.  If "interests" were to be weighed, it was the appellant's interest in having her case heard which should have been balanced against the respondent's interest in avoiding proceedings.

            It is understandable that the tribunal should be careful to ensure that time limits are properly observed.  On the other hand it would be regrettable if a situation was created whereby any person who felt that there was a possibility of discrimination should have to, in the tribunal's words, "protect her interest" by presenting an application even in the absence of any prima facie evidence of discrimination.

            If that view were to prevail it would encourage the institution of proceedings even in cases in which later access to the evidence reveals that there is no substance to the case.

            In our view the applicant in this case made out a strong case, both in justice and in equity, that her complaint should be considered by the tribunal and that the conclusion reached by the tribunal on the facts found by it cannot be sustained by this court.

            We therefore answer the question "no", order the time limit for presenting the application to be extended to 6 July 1995 and remit the matter to be heard on the merits by a differently constituted tribunal.

 

                                   


 

McCE2764

 

      IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

                                                                ----------

 

                                             DR GERALDINE FENNELL

 

                                                                    -v-

 

                                              UNIVERSITY OF ULSTER

 

                                                                ----------

                                                          JUDGEMENT

                                                                    OF

                                                        McCOLLUM LJ

                                                                ----------