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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Connolly v The Globe Bar & Anor [2004] NIFET 205_03 (25 October 2004)
URL: http://www.bailii.org/nie/cases/NIFET/2004/205_03.html
Cite as: [2004] NIFET 205_03, [2004] NIFET 205_3
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- At the outset Mr McGahon applied to amend the title of the respondent to read "Botanic Inns Ltd". Mr Stockman consented to the amendment, and the Tribunal therefore amended the title accordingly.
- The applicant lodged an originating application on 8 May 2003 claiming unlawful discrimination on grounds of religion/political opinion. In summary, his claim is that whilst employed as a doorman with the respondent, he was told not to speak Irish with family and friends, and was subsequently dismissed. The respondent concedes that the applicant was told not to speak Irish, but denies the dismissal.
- The applicant was brought up in an Irish speaking household, and was educated through the medium of Irish.
- On Counsel's instructions, the Equality Commission wrote to the respondent and the Office of Tribunals on 11 May 2004 requesting that the originating application be deemed to include a race discrimination claim, on the same facts pleaded in the originating application.
- The respondent objected to the Commission's application, and requested a preliminary hearing on the issue.
- A preliminary hearing was arranged to consider:-
- Mr Stockman submitted that the originating application submitted on 8 May 2003 should be amended to include a claim of race discrimination for the following reasons:-
- Mr McGahon submitted that the application to amend the originating application should not be acceded to by the Tribunal for the following reasons:-
- The Tribunal is satisfied that the originating application lodged on 8 May 2003 should be amended to include a claim for race discrimination.
CASE REF: 205/03 FET
APPLICANT: Aodhan Connolly
RESPONDENTS: 1. The Globe Bar
2. Peter Murray
The unanimous decision of the Tribunal is that the originating application lodged on 8 May 2003 is capable of amendment to include a claim for race discrimination.
Appearances:
The applicant was represented by Mr O Stockman, Barrister at Law, instructed by The Equality Commission.
The respondents were represented by Mr C McGahon, Croner Consulting.
At the time the originating application was lodged, the applicant was not represented. Subsequent to the application being lodged, the applicant sought assistance from the Equality Commission which was granted in July 2003. Counsel was instructed, and advised generally in May 2004.
In the alternative, the Commission lodged an additional originating application dated 12 May 2004 claiming race discrimination.
"Whether the originating application of 8 May 2003 should be amended to include an application under the Race Relations (Northern Ireland) Order 1997".
If not:-
"Whether the originating application of 12 May 2004 was received within the time limits set out in Article 65 of the Race Relations (Northern Ireland) Order 1997 and if not whether it is just and equitable in all the circumstances of the case to extend the time for presenting the claim".
(a) the claim for race discrimination arises out of exactly the same facts set out in the originating application. No additional facts will be pleaded;
(b) there is no prejudice to the respondent in allowing the amendment;
(c) the issues in this case are without legal precedent insofar as it is not clear whether the refusal to allow an applicant to use the Irish language in the course of his employment may amount to unlawful discrimination on grounds of religion/politics or on grounds of ethnic origin. The reason for the delay in making the race discrimination claim is that the legal complexities were not fully considered, until Counsel had been asked to advise;
(d) the application to amend is merely an application to "'re-label" an existing claim. Accordingly, Mr Stockman submitted that the application falls within Category II of amendments set out in Harvey on Industrial Relations and Employment Law, Volume 5, Part 5, Paragraphs 311.03 onwards.
At Paragraph 312.01 Harvey expresses the view that in such cases, "it is not good law to apply the time limits to such amendments";
(e) when the Tribunal is considering applications to amend which fall within Category II, the Tribunal should apply the principles set out in Selkent Bus Co Ltd v Moore [1996] ICR 836. In particular, the Tribunal should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Mr Stockman, submitted that in this case the balance lay in favour of the amendment, because otherwise the applicant would be denied the opportunity of presenting his case fully;
(f) the race discrimination is an alternative claim to that of religious/political discrimination. It is not proposed that the applicant could recover compensation under both heads of claim.
(a) the Race Relations (Northern Ireland) Order 1997 sets out the time period within which proceedings must be brought. The relevant time period is three months beginning when the act complained of was done. The application to amend was made one year after the originating application was lodged. There are no extenuating circumstances to excuse the delay.
(b) Article 55 ss 3(b) of the Race Relations (Northern Ireland) Order 1997 states:-
"(3) In this Order, racial group:-
(a) …
(b) does not include a group of persons defined by reference to religious belief or political opinion".
Mr McGahon argued that there was no merit in the applicant's claim for race discrimination;
(c) the respondent would be prejudiced if the amendment was allowed because potentially, the applicant could claim compensation under both heads of claims. It was not submitted that the respondent would be prejudiced in any other way;
(d) Mr McGahon accepted that the proposed amendment falls within Category II of amendments as set out in Harvey.
He submitted however, that notwithstanding the view expressed in Harvey, that it is not good law to apply time limits to such cases, the Tribunal should refuse the application because of the length of time which had elapsed between the originating application being lodged, and the request to amend the applicant.
Our reasons are as follows:-
(a) the applicant is not seeking to include new facts on which his claim is brought.
The application clearly comes within Category II which is an amendment which adds "a new cause of action but one which is linked to, or arises out of the same facts, as the original claim". In effect, the applicant is seeking to put a new "label" on facts already pleaded.
In Home Office v Bose [1979] ICR 481, the EAT dismissed an appeal against a decision to amend a race discrimination complaint to include an unfair dismissal complaint, on the basis that the facts pleaded in the originating application would have been sufficient to present a complaint under both heads of claims. The EAT concluded that since in the circumstances the amendment to include a complaint of unfair dismissal would neither prejudice the respondent, nor cause them any injustice, the Tribunal was correct to grant the amendment sought even though the statutory time limit for making an unfair dismissal complaint had expired;
(b) it was not contended in this case that the respondent would suffer any prejudice or injustice if the amendment is allowed. Mr Stockman concedes that the applicant could not recover compensation under both heads of claim. The race discrimination claim is an alternative claim;
(c) the Tribunal is not concerned with the merits of a claim for race discrimination. That is a matter to be considered at the full hearing;
(d) the Tribunal is satisfied that applying the principles set down in Selkent, it would be unjust to refuse the amendment as it would deprive the applicant of the opportunity to succeed on the race discrimination claim. The delay in making the application to amend the originating application is of little weight, because it has not caused any prejudice to the respondent. The Tribunal accepts that this case raises complex issues of law, which have not been the subject of any judicial decision. It was only when Counsel was asked to advise that the potential for a race discrimination claim arising out of the same facts as the religious/political discrimination claim became apparent.
Chairman:
Date and place of hearing: 25 October 2004, Belfast
Date decision recorded in register and issued to parties: