Fair Employment Tribunal Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIFET/2004/3133_03.html
Cite as: [2004] NIFET 3133_03, [2004] NIFET 3133_3

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 3133/03

APPLICANT: Geoffrey Francis Wilson

RESPONDENTS: 1. Commissioners of Inland Revenue

2. Leo Bunting

3. Gerry Murray

4. Paul McCarrison

5. John Jo Oldham

6. Sharon Todd

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the Tribunal is that the Tribunal refuses the application of the applicant for leave to amend the originating application to include a complaint of unlawful discrimination on the grounds of religious belief and/or political opinion, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998.

Appearances:

The applicant appeared in person and was not represented.

The respondents were represented by Ms D McBride, Barrister-at-Law, instructed by the Crown Solicitors Office.

The Decision is given in summary form, pursuant to the provisions of the Fair Employment Tribunals Rules of Procedure 2004, contained in Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2004.

The applicant presented an application to the industrial tribunal on 7 July 2003, in which he complained of unfair dismissal, victimisation, harassment and breach of contract. In paragraph 15 of the said application, when asked "are you alleging that you were unlawfully discriminated against on the grounds of religious belief or political opinion?", the applicant ticked the box "no". In paragraph 13 of the application, the applicant did not set out any facts which supported his complaint that any acts of harassment referred to in the said paragraph were on the grounds of religious belief and/or political opinion.

On 17 December 2003, the Industrial tribunal held a preliminary hearing and a decision issued to the parties on 9 February 2004 decided that the applicant was not disqualified from the right not to be unfairly dismissed and that the application would be listed for hearing. In the said hearing, there was no application made by the applicant to amend his originating application to include a complaint of unlawful harassment, pursuant to the said 1998 Order. By letter dated 25 March 2004, the Vice President, following the said preliminary hearing and decision, directed, without objection of the parties, that the jurisdiction of breach of Fixed Term Workers Regulations and Sex Discrimination be added to the applicant's complaint before the Industrial tribunal.

At a Hearing for Directions on 12 May 2004, the applicant undertook to provide to the respondents and the Tribunal the statutory basis for his complaint of harassment and victimisation. In a letter, dated 28 May 2004, the applicant made a formal application to amend the originating application before the Industrial tribunal to include a complaint of unlawful discrimination, by way of harassment, on the grounds of religious belief and/or political opinion pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998. The applicant in relation to his proposed complaint of unlawful harassment, pursuant to the provisions of the 1998 Order, to the Tribunal submitted that he would be alleging, inter alia, by way of example, that there was a Catholic clique operating in the respondents, which involved the second and third respondents harassing him, a Protestant, in the manner/ways set out in the originating application. He acknowledged that there was nothing set out in his originating application with regard to the religious belief and/or political opinion of any party and/or any such clique and/or the basis upon which he would be alleging that such harassment was on the grounds of religious belief and/or political opinion.

The Tribunal is satisfied that the applicant, in seeking to amend to include in his originating application such a complaint of harassment contrary to the 1998 Order was not merely putting a new "label" on facts already pleaded. In the opinion of the Tribunal, the applicant was seeking to bring effectively an entirely new claim, which would require him to prove additional facts and matters not set out in the originating application. There was not in the circumstances in the originating application the necessary causative link with the proposed amendment. The applicant did not dispute that, if the Tribunal so held, any such complaint would be out of time. He did not set out any grounds and/or give any evidence, when invited to do so by the Tribunal, to enable the Tribunal to consider exercising its discretion to extend the time limits on the just and equitable grounds. The applicant accepted he had known at the time of bringing his originating application that he had such a complaint under the 1998 Order and was aware the relevant time limits; but had decided, for personal reasons, not to bring his complaint at that time. He further acknowledged that in so deciding he had had the benefit of legal advice.

Even if the Tribunal is wrong and this was not a new claim, the Tribunal is satisfied that it should not exercise its discretion to give leave to allow the originating application to be so amended. This is a substantial amendment. No good or proper reason has been provided to the Tribunal why the applicant, who at all times was aware that he had such a complaint, did not make any application in relation to any such complaint until May 2004. The Tribunal noted the applicant had the benefit of legal advice and was fully aware of all relevant time limits. If leave was to be granted, the respondents would be required to carry out an investigation of any such matters alleged with additional costs and delay to the finality of this litigation; merely because the applicant has now changed his mind about proceeding with a complaint, which he has known about at all material times but decided not to proceed with until his application in May 2004. In the circumstances, the Tribunal is not satisfied that it should exercise its discretion to allow the said amendment. The application is therefore refused.

Chairman:

Date and place of hearing: 23 September 2004, Belfast

Date decision recorded in register and issued to parties: