THE INDUSTRIAL TRIBUNALS

CASE REFS:	24/08 FET
4377/03
25/08FET
4368/03

CLAIMANTS:		1.	John Patrick Lynn	
				2.	Joe Anthony Donegan	

RESPONDENT:		Bombardier Aerospace	

DECISION 
The decision of the Tribunal is that there is not an existing claim of religious belief/ political opinion on the claimants’ claim forms, that the claim forms should not be amended to include the additional information provided by letter of 27 June 2005, and that it is not just and equitable, in all the circumstances of the case, to hear and determine the claimants’ claim to the Fair Employment Tribunal notwithstanding that they are out of time.

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Kinney

Appearances:
The claimants were represented by Mr M Potter, BL, instructed by Thompsons McClure Solicitors.
The respondent was represented by Mr Murphy, Legal Advisor, of the EEF.

The issues

1.	This hearing was arranged to consider the following issues which were agreed at the outset of the hearing by the parties.

(1)	Whether the additional information provided to the Industrial Tribunal and the respondent’s representative by letter dated 27 June 2005 amounts to additional information of an existing claim of religious belief/political opinion discrimination, established by the allegation contained in the claimants’ claim forms that the respondent took into account “unlawful considerations” when they dismissed them;

(2)	If not, whether the claimants’ claim forms can be amended to include a claim of unlawful discrimination on grounds of religious belief/political opinion based on the allegation set out by additional information provided by letter of 27 June 2005; and

(3)	Whether it would be just and equitable, in all the circumstances of the case, to hear and determine the claimants’ claims to the Fair Employment Tribunal notwithstanding that they are out of time.

2.	I heard evidence from Mr Upson, Solicitor, and also was furnished a bundle of authorities by Mr Potter together with, at the request of Mr Murphy, a copy of the letter written by the claimants’ solicitors to Mr Murphy and dated 29 August 2008.  This contained a brief summary of the issues in the case.  However it was not introduced by way of evidence but as part of the claimants’ submissions.

Facts

3.	On or about 7 July 2003, Thompsons McClure Solicitors were instructed by the Amicus (now Unite) Trade Union in respect of redundancies affecting a large number of their members in the respondent’s workplace.  The claimants in this matter were dismissed in or around 9 May 2003.

4.	Thompsons McClure may have been advising the Amicus Union prior to 7 July 2003 but it was on that date that they received their instructions to lodge proceedings with the Industrial Tribunal.  The last day for presenting such claims was 9 August 2003.

5.	The claimants’ claims were lodged on 8 August 2003 together with a covering letter from the claimants’ solicitors.

6.	There were up to 200 potential claimants involved in this round of redundancies, some of whom lodged their claims directly, others through their union, and others through Thompsons McClure.  A suggested form of wording for the claim form was provided to the union who in turn provided it to some but not all of its members.  In other cases appropriate wording for the claim form was provided directly by the solicitors.

7.	The solicitors did not have an opportunity to take detailed instructions from each of the claimants.  The claims presented for these claimants identified their name and that of the respondent, the identity of their representatives and that they were members of the Amicus Trade Union.  

8.	At the time of this application the appropriate form for presenting a claim consisted of some 15 questions to be answered giving basic details of the claim.  Neither claimant in this case answered question 11 identifying the type of complaint he wished the Tribunal to decide nor did they complete box 15 asking whether they were alleging that they were unlawfully discriminated against on the grounds of religious belief or political opinion.  These were deliberate omissions on the claim forms by the solicitors as they did not have sufficient instructions to complete these matters.  However at box 13 when asked to describe their complaints the claimants have inserted:

		“I believe that I have been dismissed unlawfully and unfairly and that the respondent acted unreasonably and unlawfully in dismissing me in that it took into account unlawful considerations”.

9.	At the time of completing this form the solicitors who prepared it and presented it had no knowledge of any further claim for religious discrimination or political opinion on behalf of these claimants.

10.	Accompanying the claim form was a covering letter.  It stated at paragraph 2:

		“we received instructions in the matter on 7 July.  As a result of the large number of redundancies, the holiday period and the fact that time limits for lodging complaints with yourselves was close to hand, it was not possible to meet with such a large number of potential applicants and take their individual instructions.  As a result, pro forma wording was provided to the members of the Union to include in the originating applications in order to protect their position.  Not all these claims will necessarily be pursued to hearing, but to protect their positions this course of action was taken”.

11.	The letter goes on to state:

		“some applicants will have expressly referred to issues of discrimination.  Please note that whilst they may have done so, not all had access to legal advice prior to making such allegations and therefore, full details of the complaints may not have been provided.  Some other applicants will not have referred expressly to allegations of discrimination.  We reserve the right to amend such originating applications and to provide voluntary particulars of all the “unlawful considerations” referred to in the originating applications (including discrimination if not expressly referred to), and will do so as soon as possible after we have received detailed instructions from each of the applicants”.

12.	The letter then goes on to seek to add discrimination complaints to the proceedings in certain identified claims, none of which include the claimants in these proceedings. 

13.	The letter also contained a request that the complaints would be stayed pending the outcome in the case of Annett & Others v Bombardier Aerospace (Shorts) case ref 682/02.

14.	Proceedings were stayed to allow the case of Annett to be decided.  In the meantime the solicitors took further steps to make progress in the claims.  They started to make assessments in relation to the different cases.  Each claimant was sent a list of questions to provide further information to the solicitors in and around end of August or beginning of September 2003.  The forms were returned about a month later.

15.	Proceedings in the claims then awaited the outcome of the decision in the Annett case referred to above.  In this period no interlocutory steps were taken.  The claimants did seek discovery in August 2003 from the respondents but this was not forthcoming at that time.

16.	On 27 June 2005 the solicitors sent a further document containing additional information relating to “the unlawful considerations” as referred to in the originating applications.  Their letter goes on:

		“Alternatively, in the event that this material is not accepted as additional information, we wish to seek leave to amend the terms of the claimants’ originating application, dated 8 August 2003, to include the allegations contained in the enclosed document.” 

17.	The additional information enclosed with the letter provided the basis for a claim for discrimination based on religion or on political opinion.

18.	A Case Management Discussion was held in July 2005 at which a very large number of the Shorts redundancies claims, including these claims, were subject to the process of case management.

19.	On 6 June 2007 a Case Management Discussion was held at which these claims were listed for a Pre-hearing Review on 12 December 2007 to deal with the first two issues outlined at the start of this decision.  By consent that application was adjourned pending the decision of the tribunal in another case which may have had a bearing on this case.  In the event it did not.  

20.	On 8 February 2008 a claim was lodged by the solicitors on behalf of both claimants in the Fair Employment Tribunal setting out the claimants’ claim for religious discrimination on the grounds of religious belief or political opinion in substantially the same form as the additional information set out in June 2005.  The respondents duly entered a response.  At the Case Management Discussion on 9 May 2008 the third issue to be determined by this Tribunal was added to the issues and the case listed for hearing on the three issues set out above.

The law

21.	The claimants provided the Tribunal with a bundle of authorities to which I have had regard.  I have power to amend a claim under Rule 10(2)(a) of the Industrial Tribunals Rules of Procedure 2005.  In exercising this power I have broad discretion and should seek to do justice between the parties having regard to the circumstances of the case.  In the case of Selkent Bus Company Ltd v Moore [1996] IRLR 661 Mr Justice Mummery stated that the discretion to grant leave should be exercised:

		“in a manner which satisfied the requirements of relevance, reason, justice and fairness inherent in all judicial discretions”.

22.	Mummery J went on in that case to set out general guidance in relation to amendments:

	“(4) 	Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

	(5)	What are the relevant circumstances?  It is impossible and undesirable to attempt to list them exhaustively but the following are certainly relevant:

(a)	The nature of the amendment.  Applications to amend are many different kinds, ranging on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which changed the basis of the existing claim.  The Tribunal has to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b)	The applicability of time limits.  If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time, and if so, whether the time limit should be extended under the applicable statutory provisions …”.

Issue 1

“Whether the additional information provided to the Industrial Tribunal and the respondent’s representative by letter of 27 June 2005, amounts to additional information of an existing claim of religious belief/political opinion discrimination, established by the allegation contained in the claimants’ claim form that the respondent took into account “unlawful considerations” when they dismissed them.

23.	Mr Potter, on behalf of the claimants, conceded that the originating application did not include the word discrimination.  He contended however that the application must be read in conjunction with the covering letter.  It was an attempt, even if not perfect, to protect the position of any claimant where they may have had a discrimination case.  The wording in paragraph 13 was carefully considered.  It was a claim for unlawful dismissal.  When read in conjunction with the covering letter it was intended to constitute a discrimination claim in those cases where there was a meritorious discrimination claim.  Mr Potter referred to the use of the phrase “we reserve the right to amend such originating applications”.  The claimants’ solicitor’s aim was to protect the claimants in a way that would avoid undue excessive administration for all those involved including the Tribunal.  One alternative was to simply list all possible statutory forms of discrimination.  It was a well-intentioned approach.  He invited the Tribunal to look at the balance of injustice and hardship test.  Rather than all the claimants claiming discrimination and causing an administrative hardship, this approach was taken.  He also submitted to the Tribunal that the application was lodged under the old Rules of Procedure which were much less onerous in their requirements to provide detail and submitted that the claim was sufficiently broad to constitute a discrimination claim.  Mr Potter submitted that the additional information provided on 27 June 2005 was simply providing additional particulars of the claim already lodged and was following up on the promise made in the claimants’ solicitor’s letter of 8 August 2003.

24.	Mr Murphy, on behalf of the respondent, contended that the claimants’ applications revealed no claim for unlawful discrimination.  The original application was drafted with no particulars and no facts.  Many of the boxes were left unticked and in particular box 15 where the claimant was specifically asked whether he had a claim for religious or political opinion discrimination.  The word discrimination was not mentioned on either claim form.  The solicitors involved in lodging the claims had no instructions relating to a claim for discrimination nor did they know of any potential discrimination claim on behalf of either of the claimants.  Mr Murphy contended that clearly such a claim did not exist at the time.  The claimants’ claim was set out in paragraph 13 of their originating application.  The claim in the Fair Employment Tribunal cannot arise out of that wording and it is a fiction to seek such an interpretation.  

Conclusions on Issue 1

25.	It is common case that the claimants’ claim form taken by itself provides no reference expressly to discrimination and in particular to religious or political opinion discrimination.  The claimants seek to have the Tribunal construe the phrase “unlawful considerations” in light of the content of the covering letter submitted on 8 August 2003. 

26.	I take into account that the application was lodged under the previous Rules of Procedures.  As Harvey indicates at paragraph T[303] 

		“these Rules for rejecting a claim at the outset of proceedings represent a major change from the previous Rules, where the only ground for not accepting a claim at the threshold was its apparent failure to seek relief which the Tribunal had power to give …. There was no equivalent power to reject the claim at this stage on the basis that it failed to include what is now described as the “relevant required information”.  If challenges were made to the validity of an originating application, based on its form or contents, they were dealt with at an interim stage after both parties had the right to make representations.  The EAT took a relaxed view of the deficiencies in the originating application and held that the only mandatory requirement was that the claim should be in writing, the other requirements – setting out the names and addresses of the parties and the grounds and particulars of the claim – being held to be directory only, so that any defects could generally be remedied by the giving of further particulars during the course of the proceedings”.

27.	In this case therefore I must consider whether there was a failure to seek relief which I had power to give.  Has the claimant clearly indicated that he wished to pursue a complaint in respect of discrimination?  

28.	There is no such information contained on the originating application.  I consider that the letter of 8 August 2003 which accompanied the claim form should be read with the claim form in providing additional information.  However I am not satisfied that the wording of the letter is sufficient to clearly identify the intention of the claimants to make a claim for unlawful discrimination.  The letter is written in respect of approximately 150 applications.  I have already quoted the relevant section of the letter.  I do not consider that this discloses to the respondent a claim for unlawful discrimination based on religious belief or political opinion.  The claimants have conceded that at the time these forms were lodged there were no instructions and no information relating to any such claim for these particular claimants.  The letter states that the claimants “reserve the right to amend such originating applications and to provide voluntary particulars of all the “unlawful considerations” referred to in the originating applications (including discrimination if not expressly referred to”.  Mr Upson, in giving evidence, accepted that this was in fact reserving the right to apply to amend the originating applications.  I do not construe this sentence as saying that a claim for unlawful discrimination is being made on the application form.  Rather it is indicating the potential for such a claim to be made in the future, at which stage an application to amend would be made.

29.	I am satisfied therefore that the claimants’ applications do not include claims for unlawful discrimination on the grounds of religious belief or political opinion.

Issue 2

If not, whether the claimants’ claim form can be amended to include a claim of unlawful discrimination on grounds of religious belief/political opinion based on the allegation set out in the additional information provided by letter of 27 June 2005.

30.	Mr Potter contended that the information contained in the letters of 27 June 2005 constituted an amendment to the claimants’ claims by adding a new cause of action arising out of the same facts.  It was not a wholly new claim unconnected to the original claim.  The relevant circumstances arose out of the mass redundancy at that time.

31.	Although the claims generally were stayed to allow the Annett test case to proceed the solicitors still progressed matters and sought documents from the respondent although they did not receive them.  The particulars and additional information contained in the letters of 27 June 2005 were produced at a time when the Annett case was still progressing.  The letter sought to elaborate on or add a new ground for a claim connected to the redundancy.  Mr Potter submitted the wording in paragraph 13 of the originating application was careful to keep open potential claims arising from the dismissal.  He submitted that the causative link between the redundancy situation and the potential religious belief or political opinion discrimination is clear.  He contended this case was a re-labelling case.  

32.	Mr Murphy, for the respondent, submitted that the test case of Annett was dealing with a system of selection for redundancy.  It was not relevant to discrimination claims and the presence of that test case had no impact on the consideration by the claimants on whether claims based on discrimination for religious belief or political opinion should be pursued.  He reiterated that the originating applications did not contain any allegation of discrimination and further pointed out that the originating applications contained no particulars and no facts. Therefore it is impossible to say this is simply a re-labelling case.  He submitted that the claim set out in paragraph 13 of the originating application could not give grounds to a claim for discrimination based on religious belief or political opinion and it would be a fiction to enable that to be done.

33.	Mr Murphy contended this was a previously unpleaded cause of action.  It was sought to be added in existing proceedings outside the time limit in which it could have been advanced as a free-standing claim. 

Conclusions on Issue 2

34.	Harvey at Division T, paragraph 312.04 states:

		“In order to determine whether the amendment amounts to a wholly new claim, as opposed to a change of label, it will be necessary, as a matter of construction, to examine the case as set out in the original application to see if it provides the necessary “causative” link with the proposed amendment (see Housing Corporation v Bryant [1999] ICR 123 CA).  In that case, the failure of the claimant to make any reference in her unfair dismissal claim to alleged victimisation defeated her subsequent application to amend the originating application to include a victimisation claim under the SDA Section 4.  According to Buxton LJ, the absence of a causative link in the application was fatal to the proposed amendment which was “effectively an entirely new claim brought well out of time”.

35.	I have already found there is no claim for discrimination based on religious opinion, religious belief or political opinion in the original claims.  There was evidence that an application to amend be made in the future if further information became available.  There is no information contained on the originating applications relating to the factual basis of the claimants’ claims or such a factual basis clearly identified in the covering letter of 8 August 2003.  It is my view that there are insufficient facts to constitute re-labelling to a complaint of religious belief or political opinion discrimination.

36.	I find that the application to amend the claims based on the additional information provided by the letters of 27 June 2005 amounts to a substantial alteration to the original claim and pleading a new cause of action.  It is more than an addition or substitution of another label for facts already pleaded.

37.	It is clear on the authorities that the Tribunal has discretion to allow an amendment which introduces a new claim out of time (See Selkent Bus Company Ltd v Moore [1996] ICR 836 and British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222.)

38.	The Tribunal must consider whether the time limit should be extended under the applicable statutory provisions.  The Tribunal may consider a claim which is out of time if in all the circumstances of the case it considers that it is just and equitable to do so.  It is also clear that the fact that a claim was out of time is simply a factor, albeit an important one, in the exercise of the Tribunal’s discretion as to whether or not to allow an amendment (Ali v Office of National Statistics [2005] IRLR 2001, and Lehman Brothers Ltd v Smyth EAT 0486/05.)  The Tribunal must also consider the relative injustice and hardship involved in refusing or granting an amendment.  

39.	Mr Potter submitted that there was no hardship or prejudice to the respondent in allowing the claim.  The claimants’ claims must be placed in context.  It was a mass redundancy and a test case was identified.  Little was done by the respondent to deal with individual cases.  It did not matter if claims were expressly pleaded or not.  Interlocutory matters did not progress in this period.  The claimants would lose out on the possibility of remedies if their claims are not allowed.  There would be no claim for injury to feelings and the respondent will enjoy a windfall defence.  The claimants and their representatives were progressing matters even though they had received no further information from the respondent.  It is hard to see how the respondent could have suffered prejudice should the amendment be granted.  In June 2005 the claimants’ solicitors made good on the promise they made in the originating application and their letter of 8 August 2003.  

40.	Mr Murphy, on behalf of the respondent, submitted that there was considerable prejudice to the respondents.  Matters of discrimination are very difficult to prove and disprove and should be heard expeditiously.  This case is unlikely to be heard for almost six years after the events have taken place.  Memories fade, witnesses become difficult to trace and there is a clear prejudice to the respondents in meeting any allegations at this time.  The claimants have remedy available in relation to the case which is properly made in their originating application for unfair dismissal.  The respondents have done nothing wrong in the conduct of the case.  The respondents were unaware of any allegation of discrimination based on religious opinion or political belief until June 2005, more than two years after the dismissal.  The respondent’s conduct in dealing with the claims cannot be impeached.  Mr Murphy contended that Mr Upson had given the Tribunal honest evidence of the circumstances surrounding the originating application and the period thereafter.  There was considerable pressure placed on all concerned, full instructions were understandably not available, however, the Tribunal had heard no evidence relating to what the claimants were doing from the submission of the claims in August 2003 until the submission of additional information in the summer of 2005, there was no information on what the trade union was doing during that period and the Tribunal has heard no evidence of any action taken by them in this intervening two year period.  There was no proper explanation for the lengthy delay in providing the additional information and seeking an amendment to the claims.  The claimants had professional advice available to them and had access both to their trade union and to the solicitors.  

41.	I have considered carefully the authorities submitted by the parties and the factors I should bear in mind in exercising my discretion.

42.	I have reached the conclusion that the claimants should not be permitted to amend the originating application by way of the additional information provided in the letter of 27 June 2005.  I reach that conclusion for the following reasons:

(1)	The proposed amendment pleads facts which had not previously been pleaded in support of a new case for discrimination based on religious belief or political opinion.  

(2)	No explanation was provided to the Tribunal why these facts, which must have been within the claimants’ knowledge, were not alleged in the original application.  I do not accept that it was not possible for the claimants in this case to have provided the information and instructions relating to their allegations of discrimination as other applicants had done in their application forms and as further claimants did in the letter accompanying the originating applications of 8 August 2003.  

(3)	I have had no satisfactory explanation as to why it took a further two years for the additional information to be provided to the respondents.  The claimants’ solicitors’ letter of 8 August 2003 indicated that they would provide particulars of any discrimination not expressly referred to “as soon as possible after we have received detailed instructions from each of the applicants”.  Information was sought from each claimant in and around the end of August or beginning of September 2003.  No evidence was provided to the Tribunal to indicate whether the claimants provided the additional information at that stage, or whether it was obtained at some later date.

(4)	Whilst I accept that in general terms the claimants’ claims for unfair dismissal were stayed pending a test case, there is no reason why such a stay would have affected the ability of the claimants to provide the additional information necessary to add a further claim to their originating application.  Again, no evidence was provided as to why it took almost two years for this information to become available.

(5)	Whilst the refusal of leave to amend would limit potential for compensation the claimants still have a case properly made from their originating applications to pursue. 

(6)	I consider that the length of delay is prejudicial to the respondent’s ability to properly defend the claim for discrimination based on religious belief or political opinion.  The addition of a religious discrimination/political opinion allegation would greatly widen the range of issues before the Tribunal and add considerably to the costs of paying for and conducting the hearing.  It is likely to lead to further delays in the proper preparation for the case and further delay for any potential hearing in this matter.

Issue 3 

Whether it would be just and equitable, in all the circumstances of the case, to hear and determine the claimants’ claims to the Fair Employment Tribunal notwithstanding that they are out of time.  

43.	The claimants presented claims to the Fair Employment Tribunal on 8 February 2008.  Details of the claimants’ claims are in substantially the same terms as the additional information provided on 27 June 2005.  They claim that they have been subjected to discrimination on the grounds of religion or perceived religion and/or political opinion/perceived political opinion in relation to the assessment that led to them being made redundant.  The redundancies occurred on 9 May 2003.  The claimants’ claims are therefore outside the time allowed for taking a claim.  The Tribunal has discretion to extend the time for taking such a claim if it is just and equitable in all the circumstances of the case to do so.  

44.	The just and equitable test overlaps very significantly with the hardship test proposed in Selkent.  It is for the claimant to convince the Tribunal that it is just and equitable to extend the time limit and there is no presumption that the Tribunal should exercise its discretion to extend time unless it can justify not doing so. 

45.	My observations in relation to the additional information provided on 27 June 2005 are also relevant to the consideration of my discretion to accept the claims lodged on 8 February 2008.  On the basis of that analysis and for the reasons given, I do not consider that it is just and equitable to extend time and decline to exercise my discretion to extend the time in relation to these claims.

Chairman:

Date and place of hearing:	3 September 2008, at Belfast	

Date decision recorded in register and issued to parties: