Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 167/04FET

696/04

273/04

1738/04

CLAIMANT: Gabriel McBride

RESPONDENT: NACCO Material Handling Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that:

(i) the claimant's application for an Order amending claim numbers 167/04FET and 696/04 is refused;

(ii) the claimant's complaints of unfair dismissal, disability discrimination, sex discrimination and religious belief/political opinion discrimination contained in claim numbers 167/04FET and 696/04 are dismissed;

(iii) the claimant's equal pay claim in case reference number 696/04 will proceed to Hearing; and

(iv) the claimant's complaints in case reference numbers 273/04 and 1738/04 will proceed to Hearing.

Constitution of Tribunal

President: Miss E McBride

Appearances:

The claimant appeared in person.

The respondent was represented Mr P Bloch, Director, of the Engineering Employers' Federation.

The Issues

1. The pre-hearing review was arranged to consider the following issues:-

(i) Whether the claim, case reference number 167/04FET, is capable of amendment to include the complaint that the claimant was treated less favourably than Mr Roy Dunlop, Mrs Suzanne Turbett and Mrs Christine Burgess in relation to access to computer records, on the grounds of religious belief and/or political opinion;

(ii) whether the claim, case reference number 696/04, is capable of amendment to include the complaint that the claimant was treated less favourably than Ms Karen Brown, Mrs Christine Burgess and Mrs Suzanne Turbett by being bullied and harassed in relation to and by being refused access to computer records and other personnel information on the ground of sex.

Sources of Evidence

2. The Tribunal heard evidence and submissions from the claimant. The Tribunal also heard evidence from Mrs Shannon and submissions from Mr Bloch on behalf of the respondent. In addition, the Tribunal was referred to a number of documents by the claimant and Mr Bloch.

The Claims and the Application for Amendment of those Claims

3. By originating application presented on 16 March 2004 the claimant made complaints of:-

(1) unfair dismissal;

(2) equal pay;

(3) sex discrimination;

(4) religious belief/political opinion discrimination; and

(5) disability discrimination.

This originating application was given the case reference numbers 167/04FET and 696/04.

4. The claimant gave details of his complaints at paragraph 13 of the originating application. The details related to three matters:-

(1) alleged bullying and harassment;

(2) equal pay; and

(3) the disciplinary investigation/process used against him, which the claimant specifically alleged amounted to unlawful gender, religious belief, political opinion and disability discrimination.

5. On 30 July 2004 an Order for Further Particulars was issued in favour of the respondent against the claimant.

At paragraph 1 of the Schedule to the Order, the claimant was required to provide the following particulars to the respondent:-

"Each and every allegation of sex discrimination, to include the date of each and every such act and the nature and particulars of each and every act or omission, to include the names of all such officers of the Respondent Company either alleged to have acted or to have omitted to act."

At paragraph 2 of the Schedule to that Order, the claimant was required to provide the following particulars to the respondent:-

"Each and every allegation of religious discrimination and/or political opinion discrimination, to include the date of each and every such act and the nature and particulars of each and every act or omission, to include the names of all such officers of the respondent company either alleged to have acted or to have omitted to act."

6. By correspondence dated 4 August 2004 the claimant sought an extension of the time limit for complying with the above Order.
7. By correspondence dated 8 September 2004, Rosemary Connolly Solicitors, informed the Tribunal that they had just received instructions on behalf of the claimant. They indicated that they would endeavour to reply to the Orders within a reasonable period and sought confirmation that the extension requested by the claimant for compliance with the Orders would be granted.
8. By Order dated 14 September 2004 the Vice President extended the date for compliance to 20 September 2004.
9. By correspondence dated 29 September 2004, Rosemary Connolly Solicitors notified the Tribunal that they were no longer representing the claimant.
10. By correspondence dated 12 October 2004, the respondent notified the Tribunal that the Orders had not been complied with and sought enforcement of the Orders.
11. By correspondence dated 22 November 2004, the claimant was notified that a hearing would be arranged to consider whether or not his claims 167/04FET and 696/04 should be struck out for failing to comply with the Orders.
12. By correspondence dated 24 November 2004, the claimant wrote to the Tribunal seeking clarification on the matter. In that letter he indicated that he had sent a previous letter to the Tribunal on 28 October 2004 (which was not received by the Tribunal), indicating that he wished to withdraw all complaints in case reference numbers 167/04FET and 696/04 with the exception of his equal pay claim and that he wished to continue with his claims 1738/04 and 273/04FET. In his letter of 28 October 2004, the claimant also asked for clarification on which parts of the Order he was still required to comply with, in view of his wish to withdraw all complaints in case reference numbers 167/04FET and 696/04, except for his equal pay claim.
13. By correspondence dated 27 January 2004, the claimant was informed that he must now comply with paragraphs 4, 6, 8, 14 and 15 of the Order for Further Particulars by 20 February 2005, which dealt with his equal pay claim.
14. By correspondence dated 28 January 2005, the respondent wrote to the Tribunal asking it to reconsider its direction in relation to Orders. The respondent appeared to be unclear as to which complaints were being withdrawn.
15. By correspondence dated 4 February 2005, the claimant responded to paragraphs 4, 6, 8, 14 and 15 of the Order for Further Particulars.
16. By correspondence dated 7 February 2005, the respondent wrote to the Tribunal contending that the response was wholly inadequate.
17. By correspondence dated 29 March 2005, the claimant wrote to the Tribunal stating that he had responded incorrectly to paragraphs 14 and 15 of the Schedule to the Order for Further Particulars due to a genuine oversight. On that same date he provided the respondent's representative with new particulars relating to paragraphs 14 and 15 of his Schedule to the Order upon which he relied. Those particulars were:

"14. the less favourable treatment than that of fellow employees, that is referred to in the originating application (highlighted above) is in relation to the process adopted by the respondents that resulted in my dismissal. As you are already aware the aspects of the originating application (case reference 167/04FET, 696/04) relating to my dismissal have been withdrawn, as stated in my letter dated 28 October 2004 to the Chairman of the Office of the Industrial Tribunals and the Fair Employment Tribunal;

15. the failure by the respondents to apply their policies and the rule of natural justice, that is referred to in the originating application (highlighted above) in relation to the process adopted by the respondents that resulted in my dismissal. As you are already aware the aspects of the originating application (case reference 167/04FET, 696/04) relating to my dismissal have been withdrawn, as stated in my letter dated 28 October 2004 to the Chairman of the Office of the Industrial Tribunals and the Fair Employment Tribunal."

18. A Case Management Discussion took place before me on 28 April 2005 to clarify the issues between the parties. At that Case Management Discussion the claimant made it clear that he wished to withdraw his complaints of sex discrimination, disability discrimination, religious belief discrimination and unfair dismissal within claim numbers 167/04FET and 696/04 and that he wished to proceed solely with his claim of equal pay. Mr Bloch indicated that he wished to take instructions from the respondent in relation to the claimant's withdrawal of those complaints and that he would notify the claimant and the Tribunal whether or not the respondent wished to seek an Order for Costs.
19. By correspondence dated 29 April 2005, the claimant wrote to me indicating that having spoken with Mr Bloch after the Case Management Discussion he was totally confused and wanted to make it clear that he had not withdrawn the sex discrimination aspect of his equal pay claim. He also confirmed that he did not intend making any claim of disability, religious belief/political opinion discrimination in relation to his equal pay claim. The claimant then set out particulars in relation to his equal pay claim.
20. As a result of that correspondence a further Case Management Discussion was arranged and took place before me on 27 June 2005 to clarify precisely which complaints the claimant wished to withdraw and which complaints he wished to pursue in relation to case reference numbers 167/04FET and 696/04. The claimant had previously made it clear that he wished to continue to pursue all the complaints contained in case reference numbers 273/04FET and 1738/04. At that Case Management Discussion the claimant confirmed that having obtained further advice, he still wished to withdraw his complaints of unfair dismissal and disability discrimination contained within case reference number 696/04. In addition to the equal pay complaint, the claimant indicated that he wished to pursue the sex discrimination complaint in case reference number 696/04 in relation to his allegation that he was treated less favourably than Ms K Brown with regard to access to computer records. The claimant indicated that he may wish to pursue other allegations of sex discrimination. In relation to case reference number 167/04FET, the claimant indicated that he wished to pursue an allegation that he had been treated less favourably than his predecessor, on the ground of religious belief in terms of salary offered to him. I explained to the claimant that if these were in fact new claims, then he would have to apply for leave to amend his claims to include them. Mr Bloch indicated that any such application would be resisted by the respondent. The claimant indicated that he required additional time to consider this matter and I directed that he could have 4 weeks to do so. I also directed that if the claimant decided to pursue other allegations, then he was required to comply with paragraphs 2, 7 and 9-15 of the Schedule to the Order for Further Particulars to ascertain whether these were particulars of existing complaints or new complaints.
21. By correspondence dated 23 July 2005 the claimant gave the respondent's representative details of his allegations that he was treated less favourably than Mrs K Brown with regard to access to computer records, on the ground of sex. In addition, the claimant indicated that he did not wish to pursue any new complaints of sex discrimination, which were not contained in his originating application. The claimant further indicated that with regard to his religious belief discrimination complaint, he did not wish to pursue the matter relating to being treated less favourably than his predecessor in terms of the salary offered to him. That was because it was not contained in his originating application and he did not intend to apply for an amendment.
22. By correspondence dated 25 July 2005 to the Tribunal, the claimant requested that his "complaint with regards to access to computer records includes both sex discrimination and religious belief/political opinion discrimination". The claimant enclosed his letter of same date to Mr Bloch in which he sought to amend his previous letter of 23 July 2005, referred to at paragraph 21 above, by including two additional comparators for his sex discrimination complaint relating to access to computer records. In addition he stated:

"Furthermore I also believe I was subjected to an act of religious belief/political opinion discrimination in that I was treated less favourably than the following comparators with regard to access to computer records:

Mr Roy Dunlop (my predecessor)

Mrs Suzanne Turbett

Mrs Christine Burgess"

23. A further Case Management Discussion took place before me on 3 October 2005. At that hearing I directed that a pre-hearing review should be arranged to consider the following issues:-

1. whether the claim case reference number 167/04FET is capable of amendment to include a complaint that the claimant was treated less favourably than Mr Roy Dunlop, Mrs Suzanne Turbett and Mrs Christine Burgess in relation to access to computer records, on the grounds of religious belief and/or political opinion;

2. whether the claim, case reference number 696/04 is capable of amendment to include the complaint that the claimant was treated less favourably than Mrs Karen Brown, Mrs Christine Burgess and Mrs Suzanne Turbett by being bullied and harassed in relation to and by being refused access to computer records and other personnel information on the ground of sex.

That was because I was not satisfied that those complaints were contained in the originating application.

24. The claimant accepted, at the pre-hearing review, that neither of those complaints were set out in the originating application. However the claimant contended that they were set out in the written grievance he submitted to his manager on 20 August 2003 and which is referred to in his claim form.
25. There is no doubt that if the claimant's written grievance dated 20 August 2003 did include those complaints and did identify those comparators, then that would be sufficient to bring those complaints within his originating application. Having considered the written grievance, I am not satisfied that it did. What the claimant did in his written grievance was to complain that he had been treated less favourably than "all" of his work colleagues in relation to access to computer data. This suggests that he was alleging that he was singled out for this less favourable treatment irrespective of sex, religious belief and/or political opinion or disability (which is also referred to at paragraph 11 of his originating application). He did not specifically allege or state anything which could reasonably have alerted the respondent to his allegations that:

(i) he was treated less favourably than two work colleagues on the grounds of sex, religious belief and/or political opinion;

(ii) he was treated less favourably than one other work colleague on the ground of religious belief and/or political opinion only; or

(iii) that he was treated less favourably than one other work colleague on the ground of sex only;

or to the fact that he was not alleging that this treatment amounted to disability discrimination. The fact that the claimant "strongly" recommended, in his written grievance, that the respondent's "company representatives within HR comply fully with legislation relating to ALL employment matters, particularly in relation to recruitment, selection and equal opportunities", could not reasonably turn a complaint about lack of access to computer data into the complaints set out above.

26. The claimant contended that if he did not include those allegations in his originating application or written grievance, then he did include them in:-

(1) a conversation with Paul Savage;

(2) his letter of 5 November 2003 to Paul Savage, his line manager; and

(3) his letter of 15 December 2003 to Messrs Jim Downey and Mr Hugh McGhee of the respondent's Human Resources Department.

As the alleged documents were not referred to in the claimant's written grievance, dated 20 August 2003 (the documents post-dated it), and as they were not referred to in the originating application, although they pre-dated it, I am not satisfied that they can be relied upon by the claimant to bring his specific complaints, as set out above, within his originating application. Even if these documents had been referred to by the claimant in his originating application, I am not satisfied that the respondent could reasonably have been expected to have interpreted them to mean that the claimant was making the specific complaints, as set out at paragraph 1 of this decision. When the claimant was given the opportunity to give details of his alleged conversation with Mr Savage at the pre-hearing review, it became clear that this conversation related to a different complaint about another employee.

27. The Tribunal therefore proceeded to consider:-

"(i) whether the claim, case reference number 167/04FET, is capable of amendment to include the complaint that the claimant was treated less favourably than Mr Roy Dunlop, Mrs Suzanne Turbett and Mrs Christine Burgess in relation to access to computer records, on the ground of religious belief and/or political opinion;

(ii) whether the claim, case reference number 696/04 is capable of amendment to include the complaint that the claimant was treated less favourably than Mrs Karen Brown, Mrs Christine Burgess and Mrs Suzanne Turbett by being bullied and harassed in relation to and by being refused access to computer records and other personnel information on the ground of sex."

The Law

28. The tribunal has a discretion to make an Order giving the claimant leave to amend his claims under Rule 10(2)(q) of the Industrial Tribunals (Rules of Procedure) 2005 and Rule 9(2)(p) of the Fair Employment Tribunal (Rules of Procedure) 2005.
29. Tribunals are required to exercise that discretion in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial decisions. (Selkent Bus Company Limited –v- Moore (1996) IRLR 661, 1996 (ICR836).
30. There are three categories of amendment applications.

First category

(1) 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 of application 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. For example in Street –v- Derbyshire Unemployed Workers' Centre (2005) ICR97, a claimant who claimed that his dismissal was automatically unfair because of a public interest disclosure was allowed to amend his claim to allege "ordinary" unfair dismissal because the originating application already contained the basis of such a claim which "simply needed particularisation". However in the Selkent case the Employment Appeal Tribunal overturned the tribunal's decision allowing an amendment where the claimant sought to amend an unfair dismissal complaint alleging that the dismissal was unfair on general principles, to include a fresh allegation that the dismissal was also related to his trade union membership or activities. The Employment Appeal Tribunal considered this to be "a new positive case" which involved consideration of facts which had not previously been pleaded. Such an application would appear to come within the third category set out below (see Harvey on Industrial Relations and Employment Law T312.03), which will be subject to scrutiny in respect of time limits.

Second category

(2) This category covers amendments which add or substitute a new cause of action but one which 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. For example in Home Office –v- Bose (1979) ICR 481, the Employment Appeal Tribunal allowed a claimant to amend his claim to add a complaint of unfair dismissal to an existing complaint of racial discrimination because the particulars of the racial discrimination complaint were sufficient to found an unfair dismissal complaint as well. This type of amendment will not be subject to scrutiny in respect of time limits provided that the claim which is sought to have been 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.

The third category

(3) This category covers amendments which seek to add or substitute a wholly new claim or cause of action or a new positive case involving consideration of facts which have not previously been pleaded. 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 mater 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. For example in Harvey –v- Port of Tilbury (London) Limited (1999) IRLR 693, (1999) ICR 103, the Employment Appeal Tribunal refused to allow a claimant who had brought an unfair dismissal complaint, alleging unfair redundancy selection, to amend the claim to include a complaint of disability discrimination. That was because the proposed amendment was the addition of an entirely new cause of action unconnected with the original claim. Similarly in the Selkent case, referred to above, the Employment Appeal Tribunal refused to allow the claimant to amend an unfair dismissal complaint alleging general unfairness to include an additional ground that the dismissal was automatically unfair because of trade union membership. Amendment applications coming within the third category are subject to scrutiny in respect of time limits as if they were entirely new claims which 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 that 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 other circumstances, in particular:

(a) the length of and the reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(c) the extent to which the party sued co-operated with any request for information;

(d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and

(e) the steps taken by the claimant to obtain the appropriate professional advice once he or she 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 which it considers to be relevant including, importantly and perhaps crucially 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.

31. I am satisfied that this amendment application does not come within the second category of amendment application as it is not a re-labelling of facts already pleaded in the originating application. The issue for me to determine is whether it falls under the first category i.e. merely designed to alter the basis of the existing claims of unlawful discrimination on the grounds of religious belief and sex, but without purporting to raise new distinct heads of complaint or whether it falls within the third category, i.e. whether it is seeking to include a new positive claim of unlawful discrimination on the grounds of religious belief and sex discrimination involving facts which have not previously been pleaded.
32. Having examined the case set out in the originating application, I am satisfied that this amendment application amounts to new positive claims of unlawful discrimination on the grounds of religious belief and/or political opinion and sex which have not been pleaded previously. That is because it involves facts which the claimant accepted have not been pleaded in the originating application and which I am satisfied were not contained in the claimant's written grievance dated 20 August 2003 (which was referred to in the originating application). This application falls into the third category and must therefore be treated as if it were a new application out of time.
33. I therefore considered the following matters.

(a) Length and Reason for delay

Having considered the facts set out at paragraphs 20-22 above, I am satisfied that the application to amend the originating application to include the complaint that the claimant was treated less favourably than Ms K Brown on the ground of sex, with regard to access to computer records, was made on 27 June 2005 at the Case Management Discussion, approximately fifteen months after the presentation of the originating application on 16 March 2004. I am satisfied that the application to amend the originating application to include the complaints that the claimant was treated less favourably than Mrs Christine Burgess and Mrs Suzanne Turbett on the ground of sex and that he was treated less favourably than Mr Roy Dunlop, Mrs Suzanne Turbett and Mrs Christine Burgess on the grounds of religious belief and/or political opinion was made in his letter to the respondent dated 25 July 2005, approximately sixteen months after the presentation of his originating application to the tribunal.

I am satisfied that those delays of approximately fifteen and sixteen months respectively are substantial. The reasons put forward by the claimant for the delay were contradictory. On the one hand the claimant contended that the delay was caused by a number of factors namely:-

(1) the fact that the Equality Commission did not provide him with funding;

(2) the fact that he had received advice from his solicitor with regard to potential cost implications if his claims were not successful;

(3) his personal health;

(4) his financial circumstances;

(5) his family circumstances; and

(6) the fact that he did not know enough about the law.

On the other hand the claimant contended that the delay was caused by the fact that he believed that he had made these complaints in the originating application. If the claimant genuinely believed that these complaints were already in his originating application by virtue of the reference to his written grievance, and if he wished to pursue them, he could have made that clear when notifying the Tribunal in October and November 2004, following receipt of legal advice, that he wished to withdraw all his complaints in case reference numbers 167/04FET and 696/04 with the exception of his equal pay claim. Alternatively he could have clarified this position when correcting his response to paragraphs 14 and 15 of the Order for Further Particulars on 29 March 2005.

(b) The extent to which the cogency of the evidence is likely to be affected by the delay

I am satisfied that the respondent investigated the claimant's grievance about his lack of access to computer data. I am also satisfied that the respondent, rightly or wrongly, did not understand that the claimant was linking this grievance to one of unlawful discrimination on the grounds of sex, religious belief and/or political opinion and it did not therefore investigate it as such. In those circumstances the claimant's delay in making his amendment application is likely to have a significant detrimental effect on the cogency of the respondent's evidence due to the time lapse.

(c) The extent to which the parties sued co-operated with any request for information

In relation to the particular complaints, which are the subject of the amendment application, there was no contention that the respondent refused to co-operate with any requests for information.

(d) The promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action.

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

Although the claimant contended that he believed that he had been unlawfully discriminated against on the grounds of sex, religious belief and/or political opinion, as set out at paragraph 1 of this decision, from August 2003 and although the claimant had:-

(1) sufficient knowledge of employment legislation in August 2003 to "strongly recommend" to the respondent in his role as their Human Resources Superintendent that the company representatives comply fully with legislation relating to "ALL employment matters, particularly in relation to recruitment, selection and equal opportunities";

(2) consulted with the Equality Commission; and

(3) consulted with a solicitor during September 2004,

the claimant did not make these complaints until June and July 2005. If the claimant had genuinely believed that he had included these complaints in his written grievance and wished to pursue them, this issue could have been considered at a much earlier stage if the claimant had responded to the Order for Further Particulars, dated 30 July 2004, within the extended time limit. Instead the claimant indicated in October and November 2004 that he wished to withdraw all his claims in case reference numbers 167/04FET and 696/04 with the exception of his equal pay claim.

34. Having regard to the matters set out above I am not satisfied that it will be possible to have a fair trial between the parties in relation to the claims which are the subject of the amendment application and am not therefore satisfied that it would be just and equitable to make an Order giving the claimant leave to amend his claims in case reference numbers 167/04FET and 696/04. I therefore refused to make an Order amending those claims to include the complaints set out at paragraph 1 of this decision.
35. (1) The claimant's complaints of unfair dismissal and disability discrimination contained within case reference number 696/04 are dismissed, the withdrawal of those complaints having been confirmed by the claimant at the Case Management Discussion on 3 October 2005.

(2) The claimant's complaint of unlawful discrimination on the grounds of religious belief and/or political opinion in case reference number 167/04FET is dismissed. That is because I am satisfied that the claimant indicated orally, at the Case Management Discussion on 3 October 2005, that he was withdrawing all aspects of that claim with the exception of the complaint set out at paragraph 1 of this decision, which I do not accept was part of the claim and in respect of which I have refused to make an Order amending the claim.

(3) The claimant's complaint of unlawful discrimination on the ground of sex in case reference number 696/04 is dismissed. That is because I am satisfied that the claimant indicated orally, at the Case Management Discussion on 3 October 2005, that he was withdrawing all aspects of that claim with the exception of the complaint which is set out in paragraph 1 of this decision, which I do not accept was part of the claim and in respect of which I have refused to make an Order amending the claim.

(4) The claimant's equal pay claim in case reference number 696/04 will proceed to Hearing. That is because the claimant made that claim in his originating application and has always made it clear that he wishes it to proceed to Hearing.

(5) The claimant's complaints in case reference numbers 273/04FET and 1738/04, which the claimant has always made clear he was pursuing will also proceed to Hearing in due course.

______________________________________

E McBride

President

Date and place of hearing: 8 February 2006, Belfast

Date decision recorded in register and issued to parties: