Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2008] NIFET 34_08FET, [2008] NIFET 34_8FET

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THE FAIR EMPLOYMENT TRIBUNAL

CASE REF: 34/08FET

CLAIMANT: Noelle Simpson

RESPONDENTS: 1. Patrick Doherty

2. Anna Elder

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that :-

(1) The claimant's application for leave to amend her claim is granted, in case ref 34/08FET, to include in section 7.4 of the claimant's FET1 form the following:-

"I also believe that since I raised a complaint of discrimination I have been denied the opportunity to work extra day shifts which would otherwise have been offered to me by the respondents but for the fact that I had earlier complained that I had suffered religious discrimination. For the avoidance of doubt I believe that by failing to offer me extra day shifts as well as night shifts, the respondents have victimised me".

(2) For the avoidance of any doubt, the Tribunal has jurisdiction to hear the claimant's claim, as now amended, as the claimant has complied with step 1 of the statutory grievance procedure, pursuant to Article 20(3) and paragraph 6 of Schedule 2 of the Employment (Northern Ireland) Order 2003.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant was represented by: Mr M Wolfe, BL, instructed by Equality Commission for Northern Ireland.

The respondents were represented by: Mr C Hamill, BL, instructed by Worthingtons Solicitors.

REASONS

This Pre-Hearing Review was arranged to consider the following issue, namely:-

The claimant's application to amend her claim in Case Ref 34/08FET to include in section 7.4 of the claimant's FET1 form the following:-

The claimant presented to the Tribunal a claim, which was given the Case Ref No 155/07FET, on 7 November 2007. Subsequently, the claimant presented a further claim to the tribunal, which was given the Case Ref No 34/08FET, on 26 February 2008. By order dated 28 May 2008, the claims in Case Ref Nos 155/07FET and 34/08FET were consolidated. However, for the purposes of this hearing, the Tribunal is only concerned with Case Ref No 34/08FET.

In the claim form presented to the Tribunal on 26 February 2008, as set out above, the claimant in paragraph 7.4 of the claim form set out the basis of her claim. It is to be noted that, at that time, the claimant did not have any representative, legal or otherwise. In the said paragraph the claimant copied the letter which she had sent to the respondents dated 15 January 2008, and which had stated as follows:-

"Dear Mr Doherty,

I wish to make a complaint to you regarding victimisation, as I feel since bringing up the complaint of religious discrimination at my work place, Knockan Lodge, I feel I have been victimised by being denied a fair opportunity of working extra night shifts and have been informed (in writing by a fellow worker) that the manager, Mrs Anna Elder, said "she was only to get her two nights, no extra".

There was no dispute between the parties that this letter by the claimant to the respondents had been sent to the respondents, in compliance with the statutory grievance procedure pursuant to the provisions of the Employment (Northern Ireland) Order 2003.

As is readily apparent from the terms of the proposed amendment, the claimant now wishes to amend her said claim to include, in relation to her claim of victimisation, not only allegations in relation to the amount of work offered to her on the night shift but also to include allegations in relation to the work offered to her on the day shift. There was no dispute between the parties that neither the claim form nor the letter dated 15 January 2008 referred expressly to any allegation relating to the offer of work on the day shift in relation to her said claim of victimisation.

Mr Wolfe fairly and frankly acknowledged that it was necessary, if the claimant wished to make an allegation in relation to the offer of work on the day shift in respect of her claim of victimisation, to obtain leave from the Tribunal to amend her said claim to include the said allegation. Both representatives agreed that the said amendment, the subject matter of this application was an amendment which was designed to alter the basis of an existing claim, but without purporting to reach a new distinct head of complaint (see paragraph 311 of Section T Volume 5 of Harvey on Industrial Relations and Employment Law). Again, both representatives accepted that the Tribunal had a discretion whether to grant such an application for leave to amend; and that such an amendment was not effected by the time limits, as the nature of the original claim remained intact and that all that the claimant has sought to do is to change the grounds upon which that claim is based.

The factors to be taken into account by the Tribunal when considering whether or not to allow such an amendment are to be found in the case of Selkent Bus Company Ltd –v- Moore (1996) ICR 836 –

(a) The nature of the amendment; does it add a new cause of action or is it the addition of or amendment to the cause of action on the basis of facts already pleaded?

(b) The applicability of any relevant time limit: the Tribunal must consider whether the new claim is out of time and whether the time limit should be extended under the applicable statutory procedure?

(c) The timing and manner of the application: an application should not be refused solely on the grounds of delay, as the paramount factor is the relative injustice and hardship involved.

In fairness, Mr Hamill frankly acknowledged that, having regard to the foregoing matters set out in the case of Selkent, he would have considerable difficulty in persuading the Tribunal not to exercise its discretion to allow the said amendment. In particular, he acknowledged that no particular issue of prejudice would arise for the respondents in relation to the evidence which would be required by the respondents to resist the claimant's application in relation to the offer of work on the day shift. However, Mr Hamill contended that the Tribunal, in considering the exercise of its discretion in this matter, had to consider whether the claimant had followed the relevant provisions in relation to compliance with the statutory grievance procedure pursuant to the Employment (Northern Ireland) Order 2003. Neither Counsel were in a position to refer to any specific authority where it has been held that such a consideration requires to be taken into account. Employment Court Practice 2008 paragraph 4-126 states "arguably another relevant factor to be taken into account must be the fact that the claimant and the employer may not have followed the relevant provisions of the dispute regulations, if applicable and the requirements of Section 32 of the Employment Act 2002". In essence, in resisting the application for leave to amend the claim, the respondent raised the issue whether the claimant complied with the relevant statutory grievance procedure under the Employment (Northern Ireland) Order 2003; and in particular whether the claimant had complied with step 1 of the statutory grievance procedure when she did not, in her letter dated 15 January 2008, make any reference, in relation to her complaint of victimisation, to her allegation in respect of work offered to her on the day shift. Mr Hamill acknowledged that, but for this issue, in relation to the statutory grievance procedure, he would not be able to resist the claimant's application to amend her claim form.

I was therefore satisfied, subject to the issue of the grievance, that the claimant should have leave to amend her claim form, as set out in paragraph 1 of this decision.

During the course of submissions, it was suggested that the Tribunal might grant the claimant's application for leave to amend the claim form to include the said allegation in relation to the offer of work on the day shift; but reserve the right for the respondent, if it so wished, to raise at the substantive hearing the issue of compliance with the statutory grievance procedure. Firstly, it has to be recognised that the claim form in this matter has been accepted by the Tribunal and any amendment of the claim form relates back to the claim form presented to the Tribunal, as set out above. Secondly, if it is correct that, in exercising its discretion whether or not to give leave to amend the said claim form, it is necessary to consider whether or not the statutory procedures have been complied with, then the Tribunal would have already, in advance of any substantive hearing, have had to consider and determine any such issue. In addition, it did not appear to me to be satisfactory, and in accordance with the terms of the overriding objective, that this issue should be left outstanding until any substantive hearing. This was particularly the case where I was informed by the claimant's representative that the claimant is shortly to present to the Tribunal a further claim for unfair dismissal but also victimisation, in which she would be making allegations in relation to the offer of work, on the day shift, including the period both prior to and subsequent to presentation to the Tribunal of these proceedings, the subject matter of this application. In the circumstances, it was agreed, for the avoidance of any doubt and having regard to the terms of the overriding objective, that insofar as necessary and relevant, the Tribunal, in this Pre-Hearing Review, should also determine whether the claimant in relation to her claim, if amended, in the terms sought in her application, had complied with the statutory grievance procedures; and therefore whether the Tribunal had the jurisdiction to hear the claimant's claim.

Following the sending of the grievance letter by the claimant to the respondents dated 15 January 2008, a grievance meeting was held on 4 February 2008. Minutes of that meeting were prepared by the respondent and signed by a member of the respondent's staff, Sarah Claughton. It is to be noted that, in the said minutes, the claimant referred to her claim of victimisation; but, in particular, she raised allegations in relation to the offer of work in respect of both the night shift and the day shift. It is also clear from the minutes that the respondents considered and investigated her complaints in relation to both the offer of work on the night shift and the day shift; and there was no suggestion that they took any issue in relation to the fact that the claimant's letter dated 15 January 2008 made no express reference to allegations in relation to the offer of work on the day shift, and she had only made allegations in relation to offers of work on the night shift. It was also apparent that in the claimant's statutory questionnaire dated 25 February 2008 that the claimant, in relation to her claim of victimisation, made allegations in relation to the offer of work both on the night shift and the day shift. However, there is authority that the statutory questionnaire in itself does not amount to a grievance, as questionnaires are expressly excluded under Regulation 14 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (see also Holc-Gale –v- Makers UK Ltd (2006) IRLR 178.

Article 20(1) of the Employment (Northern Ireland) Order 2003 provides:-

"that an employee shall not present a complaint to the Fair Employment Tribunal under Article 38 of the Fair Employment and Treatment Order if –

(a) Concerns the matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 applies, and

(b) The requirement has not been complied with.

Paragraph 6, Schedule 1 of the Employment (Northern Ireland) Order 2003 provides as follows:-

"Standard Procedure

Step 1: Statement of Grievance

6. If the employee must set out the grievance in writing and send the statement or a copy of it to the employer.

There is no dispute between the parties that the standard grievance procedure was the applicable statutory grievance procedure relevant to the claimant's claim of victimisation under the Fair Employment and Treatment (Northern Ireland) Order 1998. In essence, the issue which the Tribunal was required to determine was whether the claimant complied with step 1 of the statutory grievance procedure; where, in the circumstances referred to above, in relation to her complaint of victimisation, she had not in the grievance letter referred to her allegations, in relation to the offer of work, on the night shift and the day shift and had only referred to the allegation in respect of the night shift.

In considering this issue, the Tribunal considered the recent decision of the Court of Session in Scotland in the case of Cannop –v- Highland Council ...Scot CSCSIH38 (11 June 2008)). The Court confirmed that there does require to be a necessary relationship between the grievance and the claim form. Adopting the wording using by Elias P in the well-known case of Canary Wharf, the Court of Session stated that the underlying claim presented to the Tribunal must be "essentially the same as the grievance".

In addition, at paragraph 29 of the judgement, the Court said as follows:-

"We hesitate to add to the judicial pronouncements on this topic. We approve of the observations that, on this and related matters, an unduly technical or over sophisticated approach is inappropriate (Shergold, para 27; Canary Wharf, paras 24 & 41). We add only that in carrying out this exercise it should be recognised that the grievance document and the Tribunal claim are designed to perform different functions and that their language can accordingly be expected commonly to be different. The correlation to be looked for is whether underlying the claim presented to the Tribunal is essentially the same grievance as was earlier communicated. Moreover, the grievance document need not necessarily be read in isolation. There may have been earlier communications with the employer which provide a context in which the grievance document falls to be interpreted (Canary Wharf, para 36). Thus, as seems to have been the case for some of the Union-backed claimants in the present proceedings, prior communications between the Unions on behalf of their members and the respondents, even if they do not give rise to deemed compliance by virtue of Regulations 9 or 10 of the 2004 Regulations, may constitute a relevant context in which the grievance documents are to be understood. Events subsequent to the communication of the grievance document (for example, the giving of the "basis" prior to the step 2 meeting and exchanges between the parties at that meeting) may illuminate the nature and scope of the grievance. Further, as was recognised in City of Bradford MDC –v- Pratt at paragraph 44 there may be some circumstances in which the employee (or those acting on his or her behalf) does not have access to the full facts; in such circumstances it may be sufficient to frame a grievance statement based on a suspicion or set of suspicions that certain facts exist".

In this particular case, I was satisfied that at the grievance meeting, as set out in the minutes of that meeting, both the allegations relating to the day shift and the night shift were discussed and subsequently investigated. Applying the dicta as set out in the Cannop case, what occurred at the said meeting "illuminated the nature and scope of the grievance; and from which it can therefore be seen the claimant's grievance was in relation to a claim of victimisation, which encompassed allegations in relation to both offers of work on the day shift and the night shift".

It is correct that, to satisfy paragraph 6 of Schedule 1 of the 2003 Order, it is necessary that there has to be some correlation between the grievance relied upon and the claim submitted. That is confirmed in paragraph 26 of the Judgement in the Cannop case.

"To satisfy this provision there has to be some correlation between the grievance relied upon and the claim submitted". If, for example, a grievance had been stated by an employee to an employer but, on the fair reading of it and of the claim form, they were dealing with unconnected matters, it is plain that the Tribunal would, for the time being, have no jurisdiction to entertain the claim presented. As Burton J. put it "possibly tautologously" in Shergold at paragraph 35:

"the grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance".

Burton J. there mentioned, but only by way of an example of a non-relationship, a situation where the grievance in writing related to unpaid holiday pay and the proceedings, which were then sought to be issued, were based upon race discrimination or sex discrimination with no relevance to any question of holiday pay".

The facts in this particular case are very different to those referred to above by Burton J. Unlike his example in the Shergold case, in my opinion there is the necessary correlation between the grievance relied upon in the present case and the claim submitted, and to do so was not to determine the matter in an unduly technical or overly sophisticated approach.

In addition, I have confirmed my view that step 1 of the statutory grievance procedure had been complied with in this particular case, having regard to the decision of the Employment Appeal Tribunal in the case of Kennedy Scott Ltd -v- Francis ...U.K.E.A.T./0204/07), where it was held that an employee had complied with step 1 of the statutory grievance procedure in circumstances where he presented his complaint orally to his line manager who then noted it down accurately and contemporaneously. It might be argued that the Kennedy case was particular case on its own facts, having regard to the fact that the claimant was suffering from dyslexia. Having confirmed, as Elias J stated in Canary Wharf that there is "considerable flexibility" about the "form of the grievance", Mrs Justice Cox made it clear (see paragraph 48 of the Judgement) that the precise purpose of making the written record is not material and that the question is – "whether, with the emphasis on substance, this claimant can be said in these circumstances to set out his grievance in writing and send it to his employer. In my judgement he can and the Chairman was right so to conclude". In paragraph 52 of the Judgement she also stated – "on the authorities, there is no necessity for the claimant personally to put the grievance in writing and send it to its employer. It must, of course, clearly be his grievance, his employer must receive it and it must relate, intelligibly, to his subsequent Tribunal claim. In the present case if, the end of the meeting with Ms Fishley, the claimant had asked to borrow the notes and had then either re-written them in the first person in his own hand, or had simply added at the end the words "this is my grievance" and handed them back to her, there would be compliance with step 1 and Mr Galbraith-Marten accepted this to be the case. The absence of such a step cannot be regarded, in my judgement, as invalidating compliance with step 1 in the facts of this case. Such a conclusion seems to me to lead to the unduly legalistic and technical approach, which the EAT has deliberately and wisely sought to avoid in interpreting this provisions".

In the Cannop case, the Court of Session (see paragraph 25 of the judgement) was mindful that the statutory dispute procedures should not be applied to render access to the Tribunal for claimants "impossible or excessively difficult".

In light of the foregoing authorities, I was satisfied that the claimant had satisfied the statutory grievance procedure in relation to her complaint of victimisation insofar as it related to allegations in respect of offers work on the day shift as well as on the night shift; and that the Tribunal therefore had jurisdiction to hear and determine the claimant's claim of victimisation, as amended, insofar as it included a claim relating to allegations in respect of offers of work on both the night shift and the day shift.

I therefore decided:-

1. The claimant's application is granted leave to amend her claim, in case ref 34/08FET, to include in section 7.4 of the claimant's FET1 form the following:-

"I also believe that since I raised a complaint of discrimination I have been denied the opportunity to work extra day shifts which would otherwise have been offered to me by the respondents but for the fact that I had earlier complained that I had suffered religious discrimination. For the avoidance of doubt I believe that by failing to offer me extra day shifts as well as night shifts, the respondents have victimised me".

2. For the avoidance of any doubt, the Tribunal has jurisdiction to hear the claimant's claim, as now amended, as the claimant complied with step 1 of the statutory grievance procedure, pursuant to Article 20(1) and paragraph 6 of Schedule I of the Employment (Northern Ireland) Order 2003.

Chairman:

Date and place of hearing: 3 July 2008, Belfast.

Date decision recorded in register and issued to parties: