Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
The claimant was employed by the respondent as a Catering Assistant from 2014. Between 2018 and 2020 he acted up as a Cook (which he did for 25 hours per week). He has since reverted back to his original position. The claimant was on sick leave from 12th December 2019 to 13th January 2020 and then from 27th January 2020 to 12th April 2021. He was, with the exception of two weeks in January, absent from work for 16 months.
The basis of the claim largely stems from the time in which he acted up as Cook between 2018 and 2020. Namely the claims were that the respondent had allocated 30 hours for the Cook role so they should have offered him 5 additional hours. He also brought claims citing that a flexible working request made in early 2020 was not properly actioned and disability discrimination.
The claimant lodged his claim on 13th April 2021. This was some 16 months from when the complaints originated from. Additionally, the claimant had a diary in which entries were recorded on 3rd and 4th March 2020 stating that he was going to get advice from the Belfast Law Centre and that he ‘must get on with the complaint letter…it must be within three months’. This led the Tribunal to conclude, on balance, that the claimant had been advised of the three month time limit and was aware of it. Additionally, the claimant had prepared a 28 page grievance letter before making his claim. The claimant attended occupational health and in that report it stated that there was nothing to stop the claimant returning to work and that the issue was an employment dispute rather than a medical matter.
As a result, the Tribunal concluded that the claims were brought out of time. Additionally, the Tribunal was not satisfied that the claimant had proven the need for time to be extended. This was on the basis that he was well aware of the time limit, had the capability of engaging in other matters such as contacting the Belfast Law Centre and issuing a grievance.
Practical Lessons
This case, yet again, demonstrates the importance of time limits when bringing a claim to the Industrial Tribunal. In this case, the diary entries from the claimant were detrimental to his case as it demonstrated that he was aware of the time limit. That being said, it does turn on more than just awareness of the time limit and the Tribunal did state that it should not be a checklist of factors but look at all of the factors. In doing so, it was clear that the claim was out of time and time would not be extended.
NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/
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