Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 285/03 FET

CLAIMANT: Colm Michael McKeown

RESPONDENT: Bombardier Aerospace

DECISION ON A PRE-HEARING REVIEW

The Tribunal gives leave to the claimant to amend his claim to include a claim relating to acts of unlawful discrimination by the respondent against the claimant in the period 1993 to 1995.

Constitution of Tribunal:

Chairman: Ms Crooke

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.

The respondent was represented by Ms M McGinley, of Engineering Employers' Federation.

1. The legal issue before the Tribunal was:-

"Whether the claim of the claimant includes any claim relating to any acts of unlawful discrimination by the respondent against the claimant in the period 1993 to 1995?; and:-

(a) if not, whether it is necessary for the claimant to make an application for an Order for leave to amend the claim to include any such acts of unlawful discrimination?; and

(b) if yes, whether the Tribunal shall make an Order giving leave to the claimant to amend his claim to include any such acts of unlawful discrimination."

2. The Tribunal was referred to the following case:-

Selkent Bus Company Limited, T/A Stagecoach Selkent v Moore [1996] IRLR 661

Katrina Adluni v Social Security Agency (Case Reference No: 02631/99 D and 01331/00) [Ruling]

Smyth v Zeneca (Agro Chemicals) Limited [2000] ICR 800 (EAT)

Ali v Office of National Statistics [2004] EWCA CIV 1363

3. The Tribunal did not accept Mr Potter's submission that he did not need to make an application to amend the claim to the Tribunal. Having looked carefully at the relevant paragraph of the application there is a very oblique reference to the fact that the claimant was told not to choose to go to the tool room as it would not accept Catholics easily. In the view of the Tribunal this oblique reference is not sufficient to permit the claimant to allege a further two years of an alleged 'failure to promote' claim. There is simply not the detail set out to enable the Tribunal to make a finding that the complaint runs from 1993 rather than 1995.
4. The two generic types of complaint identified by Mr Potter were:-

(a) 'a failure to promote'; and

(b) 'environmental discrimination'.

5. As such, the Tribunal would classify the amendment sought as falling into Category 1 of the Selkent Guidance. Although Mr Potter accepted that this was a substantial alteration making entirely new factual allegations, the Tribunal would classify the amendments sought as 'the addition of factual details to existing allegations'. The reason why the Tribunal has made this decision is that Mr Potter has informed the Tribunal that the claim for discrimination for 1993 to 1995 involves an alleged failure to promote. This is a claim that is very fully particularised in the claim in respect of the period from February 1995 to May 2003. Mr Potter is simply adding factual details which do not change the basis of the existing claim.
6. Ms McGinley contended that in relation to the reply to Question 8 of the response to the Notice for Particulars, the claimant was backdating his claim to start from 1997 rather than from 1999. This point is not relevant to the issue with which the Tribunal have been convened to deal. As it was conceded by Ms McGinley that this second point would be a first category amendment, the Tribunal grants leave for the claimant to amend his claim in respect of Answer 8 to include details going back to 1997.
7. The Tribunal also considered the applicability of statutory time limits. As the Tribunal has classified both amendments as Category 1 amendments, these are not affected by time limits.
8. The Tribunal has also considered the timing and manner of the application. If it had been the case that the claimant had been represented throughout by legally qualified representatives, the Tribunal would have had no sympathy with the application to amend as plainly in those circumstances, there would have been a substantial delay on the part of the claimant in making the application some two years after the commencement of his case. However this was not the case and the firm of Thompsons McClure only came on record for the claimant in or around 14 January 2005. The matter of the extension of the claim was raised very swiftly thereafter in the period of April to May 2005.
9. The Tribunal has also considered the balance of hardship issue. Ms McGinley stressed particularly that as there did not appear to be any documentation available on either side, and reliance was going to be solely on oral evidence, with the passage of time memories of the events in 1993 to 1995 and in 1997 to 1999 would undoubtedly have faded. Certain individuals involved in this period, no longer worked for the respondent. As the period which the chain of discrimination allegedly covers, as the claim stands, goes back to 1995, the Tribunal does not consider that any undue hardship will be caused to the respondent by investigating back a further two years. If it had been the case that the period of discrimination claimed for initially was a short period and the amendment was attempting to tack on additional years to a relatively short period, the Tribunal would have had no sympathy for the claimant. As it is, the claimant already alleges a very substantial period of discrimination. Nor does the Tribunal consider that it is necessarily the case that documentation will not be available in respect of this period. Surely the personnel file of the claimant does not start in 1995?
10. Having balanced the interest of both parties, the Tribunal finds that the balance tilts in favour of avoiding injustice to the claimant. The Tribunal has doubts about the relevance of whether or not the tool room was an environmentally discriminating place prior to the claimant's entry into it. However that is a matter for the substantive hearing.
11. In summary, therefore, the Tribunal grants leave for the claimant to amend his claim on the basis that it is in each instance only to add a further period of two years in respect of the failure to promote claim and the environmental claim, as these do not alter the factual basis of the claims made.

Chairman:

Date and place of hearing: 13 December 2005, Belfast

Date decision recorded in register and issued to parties: