Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 124/07 FET

1496/07

CLAIMANT: Thomas Parker

RESPONDENTS: 1. James Frazer

2. NCP Services Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the claimant's claim shall be amended to include further allegations of verbal harassment as set out in paragraph 14 of this decision.

Constitution of Tribunal:

Chairman (sitting alone): Miss E McCaffrey

Appearances:

The claimant appeared in person at the first hearing on 27 February 2008. On the occasion of the second hearing on 2 April 2008, he did not attend and sent a message saying that his partner was ill in hospital and he could not attend but that he wished the Tribunal to go ahead in his absence.

The respondent was represented by Mr M Lambe, Solicitor, of Collinson Grant, Solicitors.

THE ISSUE:

1. The issue before me is whether to grant the claimant's application to amend his Fair Employment Tribunal claim to include further acts of verbal harassment contrary to Rule 9(2)(p) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005.
2. The claimant lodged claims before the Industrial Tribunal and the Fair Employment Tribunal on 6 August 2007 and raised claims of, amongst other things, discrimination on grounds of his religion and he alleged he had been called "an English Catholic who knows no better" by colleagues when employed by the respondent.
3. As a result of a Case Management Discussion heard on 17 January 2008 when the claimant asserted that he had been verbally harassed on a number of occasions and that such harassment had happened continuously up until the date of his resignation at the end of May 2007, the Vice-President directed a pre-hearing review to consider the claimant's application for amendment. This application was opposed by the respondent.
4. At the hearing on 27 February 2008, the claimant alleged that he had been a victim of harassment by being called names by various colleagues. When pressed for specifics, he said that Katherine Stewart and Avril Hockley lived around the corner from him and that every time they passed his house, if he was outside he got "the fingers" or the "V sign". He did not say how these allegations constituted harassment on the grounds of his religion or political belief. More specifically he indicated that on an occasion early in 2007, Katherine Stewart told him that "he was nothing but an English Catholic bastard who knows fuck all about being a traffic warden". The claimant also alleged that a colleague named Wallace Graham called him "a bastard" every time that he passed him. The claimant also said that Wallace Graham had called him "nothing but a Catholic bastard" allegedly because Mr Graham was not getting the wages he used to get. The claimant stated that this happened in the Bangor office in early 2007 just before he went to Belfast to work. He also said that he told Avril Hockley on one occasion that there had been a mistake in her wages and that she called him "an English cunt."
5. In his application to the Fair Employment Tribunal, the claimant states at paragraph 12:-

" I wish NCP to forward all statements to the tribunal from my aggressors who are Avril Hockley, Jenny Craythorne, George Graham Wallace, Cathy Stewart and Deborah Eaton."

"In the statements I am accused of calling them names however in Debbie Eaton's statement she denies telling the above that I called them names but confirms she had been told I was a bastard."

"I would like NCP to forward statements from Robert Smyth, Divisional Manager."

"I was called an "English bastard."

"An English catholic who knows no better."

"I was also told they would have me out of a job within 6 months."

"Avril Hockley and Katherine Stewart would both verbally abuse me when no other T/W were present."

6. The respondent alleges in its response to the claim form that the claimant's complaints were unspecific and that they were lodged out of time. This application before me however is to consider the possible amendment of claim to include further allegations of verbal harassment and I am not therefore concerned with the time limits per se, except insofar as they affect the application to amend. However the respondent also makes the allegation that the further complaints of verbal harassment alleged by the claimant have not been the subject of a grievance contrary to Article 20 of the Employment (Northern Ireland) Order 2003 and therefore the claimant cannot include these allegations on the basis that they have not formed the subject of a grievance to his employers.
7. In terms of the grievances actually raised by the claimant, he sent an e-mail to Moira Pollock, the Human Resources manager of the respondent on 3 November 2006 when he said that:-

"I am really very tired the comments made about my character, professional ability and parentage. I am referring to Avril & Jenny, in particular Jenny. I will speak to Ian Hannah but at this time I am not prepared to allow this to continue as I believe these two individuals will disrupt the strides we have made here at Bangor. I would like to make a formal complaint about there (sic) comments and attitude towards me.

Yours truly

Tom."

8. It would appear that there was no further complaint from the claimant until he sent a letter of resignation to the respondent, initially on 23 April 2007. In that letter (according to the respondent's response), the claimant gave one month's notice and stated that "he believed that his cultural and religious background had caused people from the PSNI to tell lies about him." A copy of that letter was not made available to the Tribunal.
9. The claimant wrote a further letter on 31 May 2007 to Moira Pollock and in it he made a formal complaint about the treatment that he received whilst being a team leader:-

"From 9 October 2006 in that Avril Hockley and Jenny Craythorne referred to me as an English bastard and actively encouraged co-workers from TUPE to do the same. Referring to the way as I say Derry instead of Londonderry and Jenny Craythorne referring to me as one of those English Catholics who don't know any better and further more told colleagues that they would have me out in 6 months."

10. The claimant goes on to refer to an e-mail sent to Moira Pollock and to say that he could not put in the specific date of that e-mail because he alleges that the master file hard copy had been removed by someone named Alex Demarco.
11. Later in the letter he goes on to say:-

"I have reported there (sic) actions to Ian Hannah and James Clarke Gross misconduct. I have asked Moira for advice as I am tired of the way I am being treated and I am still waiting for some of them to talk to me as I am the victim of collective bullying."

12. The claimant's grievance was acknowledged by letter dated 5 June 2007, but no notes of any meetings held to discuss it were produced to the tribunal. It was the respondent's case that the claimant had never raised these allegations before in the course of his grievance letters or in the course of any meetings. It is correct to say that the specific allegations have not been set out in detail in the claim form, the claimant has nevertheless made complaints in relation to derogatory comments made by colleagues, has named the individuals concerned, referred to "collective bullying" and quoted instances when he was called an "English Catholic" and "English Catholic bastard", which terms specifically refer to his religious belief.

THE RELEVANT LAW AND DECISION

13. In considering this matter I have been conscious of the guidelines set out in the case of Selkent Bus Co Ltd v Moore 1996 [ICR] 836. In that case, the Employment Appeal Tribunal emphasised that the tribunal, in determining whether to grant an application to amend, must carry out a careful balancing exercise of all the relevant factors, having regard for the interests of justice and the relevant hardship that would be caused to parties by granting or refusing an amendment. The relevant factors include the nature of the amendment (in particular whether it relates to a minor matter or a substantial alteration pleading a new course of action), the applicability of time limits and whether the timing should be extended and the timely manner of the application. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. The comment is made in some of the texts that the employment tribunals distinguish between amendments which add or substitute a new claim arising out of the same facts as the original claim, which may be permitted more readily, and those that are a new claim, entirely unconnected with the original claim, which will generally not be permitted. In this particular case, the claimant is seeking to add further allegations of verbal harassment, but not to change the basis of his claim which has always been a claim of religious discrimination. He seeks to add additional acts of verbal harassment. In my view, these would not substantially alter the basis of the claim, but they would however add new allegations which the tribunal hearing the full case would have to consider as part of the overall case. There is already within the FET1 claim form, in my view, the basis of the claim of religious discrimination which needs particularisation. In light of the decision in Street v Derbyshire Unemployed Workers Centre [2005] ICR 97, I believe it would be appropriate in all the circumstances to allow the amendment.
14. The respondent alleges that the claim was out of time and in particular that the claimant has failed to raise a grievance to the specific complaints which he has made. Having considered the allegations made by the claimant in his resignation letter of 23 April (which the respondent does not appear to have investigated) and further taking account of the wide nature of the allegations made in the claimant's grievance letter of 31 May, I take the view that this grievance is wide enough to include a number of unspecified acts. It would appear that the respondent did not investigate the exact allegations more closely at that time, but it is clear from that letter that the claimant was referring not only to comments made by Avril Hockley and Jenny Craythorne, but also comments made by other co-workers. He also refers to "collective bullying" which could conceivably have related to comments by other colleagues. I stress that I make no finding as to the substance of these allegations but I believe that the grievance letter is wide enough to include them. Accordingly, I believe that it would be appropriate to amend the claimant's claim of religious discrimination to include the specific allegation referred to by the claimant at the hearing on 27 February 2008, that Katherine Stewart told the claimant that he was "nothing but an English Catholic bastard who knows fuck all about being a traffic warden" and I so order. I also direct that the claim is amended to include the claimant's allegation that it was Wallace Graham who called him "nothing but a Catholic bastard". The other allegations which the claimant makes are not specifically related to his religious or political belief and therefore I direct that they should not be included within the claimant's application to the Fair Employment Tribunal.

Chairman:

Date and place of hearing: 27 February 2008

2 April 2008 Belfast

Date decision recorded in register and issued to parties: