FAIR EMPLOYMENT TRIBUNAL

CASE REFS:  00084/09FET & 06767/09

CLAIMANT:		Ryan Gallagher

RESPONDENTS:	1.  McNaughton Blair Ltd T/A Simpsons Building Supplies
2.  Neil Donaghy
3.  Derek Burton

DECISION ON A PRE-HEARING REVIEW
The Tribunal allows the amendment to the claimant’s claim form to add a claim for sectarian/religious harassment by the second respondent; sectarian/religious harassment by the third respondent; and victimisation by the first and second respondent on the basis of religious belief or political opinion and further permits the further amendment of adding the factual basis for the amendments as set out in the claimant’s note of 1 July 2009.

Constitution of Tribunal:
Chairman:		Mr B Greene
Panel Members:	Mrs Lewis
Mrs Savage

Appearances:
The claimant appeared in person.
The respondents were represented by Mr Sean McDonough of Pardoes, Solicitors, Yeovil, England.

SOURCES OF EVIDENCE

 1.	The Tribunal heard evidence from the claimant.  The Tribunal had regard to the claimant’s claim form; the respondents’ response; Case Management Discussion records of proceedings of 29 June 2009 and 21 August 2009; a bundle of three documents from the claimant; the claimant’s note of 1 July 2009 with the attachments setting out the details of the factual basis for his amendment; a bundle from the respondents of some 85 pages; and the respondents’ skeleton argument.  The Tribunal also had regard to the oral submissions on behalf of both parties.  

THE CLAIM AND DEFENCE

 2.	The claimant claims discrimination on the basis of his religious belief or political opinion.  The respondents deny the claimant’s claims in their entirety.  On 13 June 2009 the claimant sought to rectify his form.  This was considered at a Case Management Discussion on 29 June 2009.  The claimant indicated that he wished to amend his claim by adding claims for sectarian harassment and victimisation.  The Tribunal ordered the claimant to set out in writing the precise amendments he wished to make by 6 July 2009.  

At the Pre-Hearing Review on today the claimant indicated that his proposed amendment amounts to claims for sectarian/religious harassment by the second respondent; sectarian/religious harassment by the third respondent, and victimisation by the first and second respondent on the basis of religious belief or political opinion.  He is no longer seeking to make any amendment in relation to the making of a protected disclosure in these proceedings.  The respondents did not raise any objection to this summary as part of his proposed amendment.  

Complaints of sectarian harassment and victimisation are set out in his proposed amendment of 1 July 2009.  

THE ISSUES

 3.	(1)	Whether the claimant should be given leave to amend his claim form to include claims in respect of the matters mentioned in the attachment to the claimant’s note of 1 July 2009 (The note and attachments are appended to this Decision at Appendix 1).

(2)	Whether the claimant should be given leave to amend his claim form to include claims of;-

(a)	sectarian/religious harassment by the second respondent, and

(b)	sectarian/religious harassment by the third respondent, and

(c)	victimisation by the first and second respondent.

FINDINGS OF FACT

 4.	The following facts found by the Tribunal emerged from the evidence adduced or appeared to the Tribunal not to be in dispute;-

(1)	The claimant is an unrepresented litigant.  On 27 February 2009 he presented a claim for discrimination on the ground of religious belief or political opinion against the respondents.  

(2)	In early March 2009 the claimant had a conversation with his cousin who is a trade unionist.  The discussion dealt with a harassment claim on ground of religious belief or political opinion.    

(3)	At the grievance meeting in early March 2009 the claimant alleged inter alia harassment.

(4)	In a response lodged on 1 May 2009 the respondents deny the claimant’s claims in their entirety.  The response was served on the claimant by the Office of the Tribunals by letter of 15 May 2009.

(5)	Following correspondence from the respondents’ solicitors the claimant wrote to the Office of the Tribunals by email of 13 June 2009 asking, “Is there anything I can do to rectify the mistakes I made in my response form?” 

(6)	The claimant was informed by the Office of the Tribunals that the matter, he raised in his email of 13 June 2009, could be dealt with at the forthcoming Case Management Discussion on 29 June 2009.

(7)	At the Case Management Discussion on the 29 June 2009 the claimant was ordered to serve on the respondents’ solicitors the precise amendment that he wished to make by 6 July 2009.

(8)	The claimant set out by letter of 1 July 2009 the proposed amendment to section 7 of his claim form.  The claimant numbered the handwritten paragraphs in section 7 of his claim form from 1 to 10.  

His proposed amendment runs to five pages and follows his handwritten numbering of the paragraphs within section 7 of the claim form.  It adds three further allegations to para 4 of section 7 against the second respondent and a general allegation of religious discrimination against the first respondent for all the discrimination he allegedly suffered at para 7 of section 7. 

The proposed amendment also sets out a number of named individuals with whom the claimant worked and with whom he compares the treatment he received.

The claimant advised the Tribunal today that he does not wish to have included in his proposed amendment Page 5 of the document of 1 July 2009 which is entitled “Background Evidence”.  

	(9)	The respondents objected to the claimant’s proposed amendment and a Pre-Hearing Review was arranged to deal with the claimant’s application to amend his claim.

(10)	On 21 August 2009 the claimant successfully applied for the Pre-Hearing Review to be before a full Tribunal.  The Pre-Hearing Review came on for hearing on 19 November 2009. 

(11)	At the Pre-Hearing Review the respondents’ representative raised as an issue whether the claimant had complied with the statutory grievance procedure in relation to any claim for harassment.  However the Tribunal ruled that that was not an issue for this hearing and it was an issue that the respondents could raise as part of the substantive hearing should the claimant’s proposed amendment be accepted.

(12)	The respondents opposed the proposed amendment.  In support of their contentions they asserted;-

(a)	The claimant’s claims for harassment were out of time the last one being late summer which they said was up to 31 October 2008.  The claims should have been presented by 31 January 2009.

(b)	The allegation about phone-calls began from October 2007 but no specific dates are set out.

(c)	The alleged discriminatory allegations do not form a continuing act.

(d)	That if the complaints are out of time the Tribunal should not exercise its discretion to extend time to permit the additional allegations to form part of the claimant’ case.

(e)	Should the amendment be permitted there would be prejudice to the respondents by the expense of meeting the additional claims.

(13)	The claimant contended that all the harassment was the same.

The Law

 5.	(1)	The Tribunal has discretion to make an order giving the claimant leave to amend his claim under Rule 9 (2) (b) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005.

(2)	A Tribunal shall not consider a claim for discrimination unless it is brought within three months of the act complained of (Article 46(1) the Fair Employment and Treatment (Northern Ireland) Order 1998).

(3)	A Tribunal may consider a claim which is out of time if it is just and equitable to do so (Article 46(5) the Fair Employment and Treatment (Northern Ireland) Order 1998).

	(4)	Tribunals are required to exercise their discretion in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial decisions (Selkent Bus Company Ltd  v  Moore [1996] ICR 836 at 842 H).

	(5)	The principles to be applied by a Tribunal when considering whether to permit an amendment or not are to be found in Selkent Bus Company Ltd v Moore and are discussed in Harvey on Industrial Relations sub-section T [311] to [313].  There are three categories of amendment applications;-

(a)	the first category covers amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint.  This category will not be subject to scrutiny in respect of time limits but will be subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.

(b)	The second category covers amendments that add or substitute a new cause of action but one that is linked to, or arises out of the same facts already pleaded in the original claim.  This category of amendment is usually described as putting a new “label” on facts already pleaded.  This type of amendment will not be subject to scrutiny in respect of time limits provided that the claim which is sought to be amended has been presented in time, but will be subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.

(c)	The third category covers amendments that seek or add or substitute a wholly new claim or cause of action or a new positive case involving consideration of facts that have not been previously pleaded.  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 and “causative link” with the proposed amendment.  Amendment applications coming within the third category are subject to scrutiny in respect of time limits as if they were entirely new claims that have been brought outside the time limit.  The Tribunal should therefore only exercise its discretion to grant an application to amend under this category if it considers it is just and equitable to do so.  In exercising that discretion the Tribunal is required to consider the prejudice which each party would suffer as a result of granting or refusing the application and to have regard to all the circumstances, in particular;

(i)	the length of and reasons for the delay,

(ii)	the extent to which the cogency of the evidence is likely to be affected by the delay,

(iii)	the extent to which the parties sued have co-operated with any requests for information, 

(iv)	the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action, and

(v)	the steps taken by the claimant to obtain the appropriate professional advice once he knew of the possibility of taking action.

				There is no legal requirement on a Tribunal to go through this list in every case provided that no significant factor is left out of account by the Tribunal in exercising its discretion.  The Tribunal must balance all the factors that it considers to be relevant including, whether it is possible to have a fair trial in relation to the claim which is subject of the amendment application.  The Tribunal must be aware that time limits are to be exercised strictly in industrial and employment cases and that it is for the claimant to satisfy the Tribunal that it should exercise its “just and equitable” jurisdiction.

			(d)	A person subjects another to harassment on the grounds of religious belief or political opinion if he engages in unwanted conduct which has the purpose or effect of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that other person ((3A) the Fair Employment and Treatment (Northern Ireland) Order 1998).

			(e)	A person discriminates by way of victimisation against another person if he treats that other person less favourably than he treats or would treat other persons in those circumstances and does so for any of the following reasons;-

			(i)	he has brought proceedings against the discriminator or any other person under the Fair Employment and Treatment Order, or 

			(ii)	he has given evidence or information in connection with such proceedings brought by any person or any investigation under the Fair Employment and Treatment Order, or 

			(iii)	he has alleged that the discriminator or any other person has contravened the Fair Employment and Treatment Order, or

			(iv)	has otherwise done anything under or by reference to The Fair Employment and Tribunal Order in relation to the discriminator or any other person, or

			(v)	the discriminator knows that the other person intends to do any of those things or suspects that he has done or intends to do any of those things (Article 3(4) and (5) The Fair Employment and Treatment Order).

		(f)	In deciding whether a number of alleged acts of discrimination can constitute “continuing acts” the focus should be on the substance of the complaints that the discriminator was responsible for an ongoing situation or a continuing state of affairs in which persons were treated less favourably on the prohibited ground.  It is too rigid an approach to concentrate on whether the concepts of a policy, rule, scheme, regime or practice fitted the facts of the case.  The burden is on the complainant to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of “an act extending over a period” (Hendricks  v  The Commissioner of Policy for the Metropolis [2003] IRLR 96).

		(g)	In cases where there is an issue as to whether a Fair Employment Tribunal has jurisdiction to determine all or part of a claim because “an act extending over a period” is said to be a series of acts some or all of which occurred outside the three month limitation period, the claimant must show a good arguable case or a prime facie case that the matters complained of did constitute such an act (Pugh  v  The National Assembly for Wales [2006] UK EAT 0251062609).

APPLICATION OF THE LAW AND FINDINGS OF FACT

 6.	(1)	The claimant claims discrimination on grounds of religion and political opinion.  The allegations concern four specific incidents and the failure of his manager (second respondent) and employer (first respondent) to deal with his grievance.

	(2)	The claims already made could satisfy the requirements of harassment under Article 3A of the 1998 Order.

	(3)	Similarly the case as already pleaded could satisfy the requirements of victimisation under Articles 3(4), (5) of 1998 Order.  

(4)	In their response the respondents have denied the claimant’s claims of discrimination on the grounds of religion or political opinion and harassment.

(5)	In their response, to the claims already pleaded, the respondents have not sought to take a point about his claim being out of time.

(6)	In relation to the existing claims, prior to any amendment, they could be characterised as constituting harassment or victimisation.

As such they would amount to a new label and would not be subject to scrutiny in respect of time limits.

(7)	The claims would however be subject to scrutiny in respect of hardship and delay in making the application to amend.  

There is not any obvious hardship to the respondents if the amendment is made.  

		Nor does delay seem to be a major factor.  According to the respondents’ response, at the grievance meeting in early March 2009 the claimant was alleging harassment and indeed the respondents denied it in their response.

	(8)	Therefore amendments to the claimant’s claim to add claims of harassment and victimisation to the claims as pleaded are appropriate and are allowed.  

	(9)	The proposed factual amendments are further allegations of discrimination and harassment on the grounds of religion or political opinion.  The allegation of harassment by the second respondent is taken back to October 2007.  The specific incidents referred to in the proposed amendment appear to have been mentioned at a grievance meeting by the claimant in early March 2009, as appears from the respondents’ response.

	(10)	The proposed amendment in relation to the factual matters falls into the third category of amendment and is subject to scrutiny from the point-of-view of time limits and to see if there is a causative link between the original claim and the proposed amendment.

		The causative link is obvious as the proposed amendment adds further and similar incidents of alleged discrimination/harassment against the second respondent and a general allegation against the employer (the first respondent) for discrimination/harassment.  

	(11)	The further allegations are not set out until 1 July 2009.  They could have been included in the claim form of 1 May 2009.  They were mentioned at the grievance meeting in early March 2009.  Thereafter the claimant realised his form was defective and sought to correct it by e-mail of 13 June 2009.  

		The cogency of the evidence is not likely to be affected by any delay.

	There is nothing to suggest that the parties have not co-operated with requests for information.

	The claimant professes ignorance of a harassment claim until his discussion with his cousin in early March 2009 and he raises it immediately with the respondents at the grievance meeting in early March 2009.

	The claimant attempted to take advice from the Equality Commission.  

(12)	The Tribunal concludes that it would be just and equitable to permit this amendment.  In so concluding the Tribunal had regard to the following matters;-

(a)	This is a complicated and complex area of law.

(b)	The claimant is a self represented litigant.

(c)	Given that no evidence has been heard on the merits of the allegations the claimant’s claim in relation to this amendment must be considered at its reasonable height.

(d)	The incidents in the proposed amendment are of a similar kind to those already pleaded.

(e)	The Tribunal is satisfied that it is open to the claimant to argue that a discriminatory state of affairs existed in relation to the claimant, given that the second and third respondents are alleged to be repeat offenders and the first respondent has knowledge of these matters and did not deal with it.

(f)	The discriminatory state of affairs amounts to a continuing act for the purposes of Article 46(6)(b) of the 1998 Order.

(g)	The period of the continuing act was, for the purposes of the Pre-Hearing Review, from late October 2007 up to at least 1 May 2009, the date of the originating application, by reason of the allegation that the respondents failed to deal with the claimant’s grievance.  It is therefore open to the claimant to argue the proposed amendment is within the three months.

(h)	Even if the proposed amendment is outside the primary time period the Tribunal considers it just and equitable to extend time to enable the claimant to add the proposed amendment to his claim, having regard to the considerations as set out above at 6(12).

(13)	Accordingly the Fair Employment Tribunal allows the proposed amendment by the claimant.

The respondent will be given a further 28 days from the date of this decision to amend its response to deal with any matters raised by the claimant in his permitted amendment.

	(14)	The Fair Employment Tribunal would also point out that when all the evidence has been heard the claimant may not succeed in proving that the alleged incidents actually occurred or that if they did they add up to discrimination or harassment on the basis of religion or political opinion or victimisation or that they amount to a continuing act over a period of time.

Chairman:	

Date and place of hearing:	19 November 2009, Belfast.

Date decision recorded in register and issued to parties:

Appendix 1

Case Ref; 84/O9FET 

Please find my (ETI) form with amendments made on the attached pages.
 
The attached amendments will be coupled the appropriate paragraph and line number, I only use attachments as I simply haven’t enough room on my (ETI). 

Best wishes 

Ryan Gallagher. 

Para4* 
Line 11 
Part (ii) 

I waited until 17/01/09 to give Neil Donaghy sufficient time to address the 
traumatising, systematic sectarian abuse I suffered and he did nothing about this, this is most definitely discrimination on the grounds of my religious beliefs not being akin
to his or Derek burtons and also as they are best friends.

Para 4* 

Part (III) 

From late summer 08 Neil donaghy has waged a campaign of terrible harassment of 
me on the grounds of my religious beliefs not being akin to his or my prodestant co-workers, details of which are as follows.... 

I left work early to attend to my very sick mother, as neil donaghy was in a meeting in belfast I couldn’t contact him to let him no of my impending departure. I let it be 
known to others that I was leaving and did exactly that. 

I stopped off at what I consider my second home to get changed and washed when all of a sudden I heard what sounded like someone violently beating at my door. Then to my horror, embarrassment, shame Neil Donaghy started to shout disgusting obscenities around the enclosed cul de sac where my second home is.
 
The severity of Neils behaviour was very frightening, as cowered in my bathroom waiting for this torrent of abuse to subside which it did albeit temporarly, only for 
Neil Donaghy to break into my home via an unlocked door at the back of my house 
and proceeded to shout “I know your up there hiding you fucking dickhead your 
probably up there having a wank”. This deplorable behaviour continued for another 
minute until he finally shouted “when I get back to work im gonna keep ringing you 
till pick up you wanker” He then stormed out and drove off.
 
I don’t think ive ever been as scared in my life, I was in a state of shock when my neighbour (Nathan Magee) called in to say he seen the whole thing and that Neil was 
like an animal. A few minutes later the phone began to ring and ring I wasn’t fit to answer it but after approx the 10th  time it rang I plucked up the courage to answer to which Neil said “Get your shit together im picking you up in 30 mins I don’t give a 
fuck about your ma be ready or your getting the sack”. 

Para4* 
Part (Ill) 
Continued 

I would draw comparisons from all Prodtestant co-workers on this issue, these are... 

Allistiar Mc Clean 

Steven Hawe 

Willard Gault 

Brian Wilkinson 

Derek Burton 

Thomas Chambers 

Malcolm Davidson 

Noel Hudson 

As Neil Donaghy has never done anything remotely like this to any of the aforementioned when they have left work early for good reason or any reason for that matter. 

Para4* 

Part (v) 

During my employment Neil Donaghy used phones as a weapon to to harass me 
further on the grounds of my religious beliefs 

Neil would do this on holidays, sick days without regards to time and against my wishes as I asked him to leave me alone on those days off. 
I cant give you specific times and dates as there is far to many incidents to speak of.
 
I would draw comparisons on this issue with my prodestant co workers 

Alistiar Mc Clean 

Steven Hawe 

Brian Wilkinson 

Thomas Chambers 

Malcolm Davidson 
Noel Hudson 
Willard Gault 
Neil has never, would never harrass my prodestant co worker like this, indeed on 
telling Steven Hawe about my predicament he replied” He wouldn’t do that on me”. 

Para4* 

Part (vi) 

There was in incident in December 08 where my departments daily float was stolen 
from my unattended till. 
I informed Neil donaghy of this immediately to which he went into a tirade of abuse calling me a stupid bastard amongst other things.
 
Neil then informed me that if I didn’t replace this money I would be sacked if head office were to get involved, it saddens me to say that I felt threatened to replace this money (which I stupidly did under duress from Neil) 

Again this is harassment of me on the grounds of my religious beliefs not being the same as my prodestant co workers with money handling responsabilites, these are... 

Derek Burton
 
Steven Hawe
 
Brian Wilkinson 

NEVER has Neil donaghy made any of the aforementioned replace monies 
lost/stolen or just missing from mistakes made in a days trading(wbich is quite 
frequent) never mind threatening them with dismissal for any such incident. 
Para4* 
Part (Vii) 

I feel I have been victimised, bullied and made look a fool of, I would also be in no 
doubt that Neil Donaghy used his power over me abusively and that he has most definitely Harrassed me on the grounds of my religious beliefs. 

As Neil Donaghys harassment spanned over a considerable period of time I feel its impossible for me to put a “3 month” time limit on this issue. 

Para7*
Line 5
Part (ii) 
At this point I feel my employers .Macnaughton Blair have directly discriminated
against me on the grounds of my religious beliefs by their sheer incompetence in all matters involving discrimination, harassment and sectarian abuse so much so that I would call into question any training given to the average worker like myself up to the general manager so they would be well versed in how to deal with these issues. 
I exhausted all statuatory grievence procedures (informal,written) using my company 
Health & Safety guide as a referral (notably page 21 under the heading of 
VIOLENCE) but got no joy from this forcing me to seek the tribunals help.
 
Of course its impossible for me to draw any comparison on this matter as im not privy to macnaughton blairs legal affairs, but there is a first time for everything.
 
I have been left traumatised by my employers unwillingness to help me sort out the 
issues I bring to them and I cant help but feel victimised, marginalized, distraught, anxious, depressed and feel without doubt if my religion were Prodestant and not 
Roman Catholic, I wouldn’t be in the horrendous position I fmd myself in.