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Cite as: [2009] NIFET 65_08FET, [2009] NIFET 65_8FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 65/08 FET

590/08

CLAIMANT: Hilary Marianne Bailey

RESPONDENT: Belfast City Council

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that:-

The claimant’s claim form presented to the Tribunal on 8 April 2008 did not include a claim of age discrimination.

(2) The Tribunal refuses the claimant’s application for leave to amend her claim to include in her claim form a claim of age discrimination.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Ms D Murtagh, Solicitor, of the Office of Director of Legal Services, Belfast City Council.

Reasons

This pre-hearing review was arranged to consider the following issues:-

(i) Whether the claimant’s claim form presented to the Tribunal on 8 April 2008 included a claim of age discrimination; and, if so, whether it should be accepted by the Tribunal?

(ii) If it did not include a claim of age discrimination, whether the Tribunal should grant leave to the claimant to amend her claim to include in her claim form a claim of age discrimination?

In light of the foregoing, any consequential directions/orders.

2.1 The claimant presented a claim to the Tribunal on 8 April 2008. In that claim, she made a claim, of religious discrimination and a claim of constructive unfair dismissal. Those claims have been the subject of various Case Management Discussions. During the course of a Case Management Discussion held on 12 March 2009, the claimant indicated that she believed that she had made, in addition to her claim of religious discrimination and/or constructive unfair dismissal, a claim of age discrimination. In particular, she referred to Paragraph 8.4 of her claim form, in which she had stated, inter alia:-

“All three of these people are younger [Tribunal’s emphasis], female Catholics.”

In the circumstances, I directed, at the said Case Management Discussion, that this pre-hearing review should be arranged to consider the issues set out above.

2.2 When the claimant presented her claim form to the Tribunal on 8 April 2008, she completed her claim form, without any legal assistance. The claimant informed me in evidence, at this hearing, she obtained the claim form from the Labour Relations Agency. However, in subsequent correspondence to the tribunal, she indicated she believed the said form had been received by e-mail from the firm of solicitors, who subsequently represented her, as set out later in this decision. The claim form, which she used, did not have a box to tick, to show she wished to make a claim of ‘age discrimination’. This claim, having been made on 8 April 2008, was made at a time when the provisions (the Employment Equality (Age) Regulations (Northern Ireland) 2006) relating to a claim of age discrimination were in force. The claim form used by the claimant was an ‘old claim form’, as the more recent claim forms prescribed by the Department for Employment and Learning, following the commencement of the age discrimination legislation, include such a box. As indicated above, the claimant did not tick any box of the claim form to show that a claim of age discrimination was made by her; but even if there had been a box on the claim form to tick for age discrimination, and she had not ticked that box, it is not determinative of the type of claim that is made by a claimant. Regardless of what box is ticked, if any, it is always necessary for the Tribunal to consider the whole of the claim form and, in particular, the matters set out and the details given in the body of the said claim form (see further Grimmer v KLM Cityhopper [2005] IRLR 596).

2.3 The reference in Paragraph 8.4 of the claimant’s claim form as set out above, to ‘all three of these people are younger female Catholics’ was inserted in a paragraph in the claim form, where the claimant was setting out in more detail her said claim of religious discrimination. The claimant accepted that no where in the said form, either in Paragraph 8.4 or elsewhere, was there any reference by the claimant to a claim by her of age discrimination. The claimant maintained that, if there had been a box to tick, to signify a claim of age discrimination, then she would have ticked such a box. Significantly, in my judgment, the claimant, in the course of her evidence to the Tribunal at this hearing, stated that at the time when she presented her claim form to the Tribunal she did not know ‘it (age discrimination) was up and running’; and that it was subsequently in discussion with friends reference had been made to the fact that the said female Catholics referred to, in her claim of religious discrimination, were younger and that therefore a claim of age discrimination might also be relevant. Despite this, no application was made by the claimant, prior to the Case Management Discussion on 12 March 2009, to amend her claim to include any such claim of age discrimination. Indeed, from on or about 18 September 2008 until 9 March 2009, the claimant was represented by a firm of solicitors, who are experienced in employment matters and, in particular, in claims of discrimination. Despite this, following the said firm of solicitors coming on record on behalf of the claimant, no attempt was made by her said representatives to suggest that the claimant’s claim already included a claim of age discrimination and/or the claimant wished to amend her claim to include a claim of age discrimination, if such a claim had not already been made.

2.4 Further, in a reply to the claimant’s Notice for Additional Information, dated 12 February 2009, the respondent replied to the question – please provide details of all persons whose jobs were re-evaluated in the area, department or unit of public health in the period 2001 – 2007 including their age and religion? – as follows:-

“ ...

As the claimant has not submitted a claim of age discrimination it would appear that any information relating to the age of the claimant is irrelevant ....”

This reply was not challenged by the claimant’s then representatives in correspondence between the representatives of the parties nor at the Case Management Discussion on 27 February 2009.

The respondent had initially sought additional information by Notice dated 10 July 2008 from the claimant in respect of her claim of religious discrimination. Following a Case Management Discussion on 9 January 2009, the claimant was ordered to reply to the said Notice. Again, it has to be noted in the reply, dated 13 February 2009, which was sent by the claimant’s solicitors to the respondent’s solicitors, no reference was made to any claim by the claimant of age discrimination. Indeed, no such suggestion was made by the claimant’s representative during the course of the said Case Management Discussion on 9 April 2009, when the said Order was made. Following the said Case Management Discussion on 9 January 2009, but before the claimant’s solicitors came off record on 9 March 2009, there were discussions between the representatives as a result of which a draft agreed statement of issues for determination by the Tribunal was prepared by the representatives for the claimant and the respondent. This draft statement was subsequently handed in to the Tribunal, without objection, by the respondent’s representative, during the course of the Case Management Discussion on 12 March 2009, at which this pre-hearing review was directed. Significantly, this statement of issues made no reference to any claim of age discrimination by the claimant in her claim form presented to the Tribunal on 8 April 2008 nor did it make any reference to any application to amend her claim form to include any such a claim.

2.5 The reply to the respondent’s Notice for Additional Information dated 13 February 2009 was sent to the respondent’s representative by the claimant’s representative on behalf of the claimant. In addition, the respondent’s representative, in its reply to the claimant’s representative dated 12 February 2009, had made it clear that it did not accept that the claimant had made any claim of age discrimination in her claim form. This was therefore known to the claimant’s representative prior to their coming off record. Despite this, the said draft statement of issues made no reference to any such claim of age discrimination and/or the necessity for any application for leave to amend the claim form to include such a claim – albeit the said reply and/or draft statement had been prepared on the claimant’s behalf by experienced discrimination lawyers, prior to their coming off record. The claimant maintained, at this hearing, that she had made it known to her representative that she was making a claim of age discrimination. This seems somewhat surprising, given her former representative’s considerable experience in employment matters. However, whatever may have taken place between the claimant and her former representatives, at no time prior to the hearing on 12 March 2009, when the claimant appeared in person, following her solicitors coming off record on 9 March 2009, was there any reference to any such claim of age discrimination made by her representatives, either at the Case Management Discussions held in this matter and/or in correspondence between the representatives and/or in the course of replies to a Notice for Additional Information and/or the preparation of a draft statement of issues. The claimant made clear, in her evidence, she had various criticisms of her former representatives in how they conducted the case on her behalf. Such specific criticisms are a matter between her and her former representatives; and in the circumstances and on the basis of the evidence before me, where her former representatives were not present and/or represented, I reach no conclusions in relation to those criticisms.

2.6 In light of the foregoing, I have come to the conclusion that the claim form presented to the Tribunal on 8 April 2008 did not include a claim of age discrimination; and that the reference to ‘younger’ in Paragraph 8.4 of the claim form was merely descriptive of the persons relevant to the claimant’s claim of religious discrimination and was not included for the purposes of making a claim of age discrimination.

As Harvey on Industrial Relations and Employment Law, Volume 5, Section T, Paragraph 311.03 makes clear a distinction may be drawn between:-

amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;

amendments which add or substitute a new cause of action but one which is linked to or arises out of the same facts as, the original claim; and

amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.

I am satisfied that the claimant’s application for leave to amend the claim form to include a claim of age discrimination, falls within the second category referred to above; and, in essence, she is now seeking to establish that the claimant’s reference in Paragraph 8.4 of her claim form, with its reference to the younger [Tribunal’s emphasis] female Catholics, is putting a new label on facts already pleaded. As set out in Harvey (see above), such an amendment does not require to be subjected to scrutiny in respect of time-limits, but can be considered under the general principles applicable to amendments, summarised in the well-known case of Selkent Bus Company Ltd v Moore [1996] IRLR 661.

As Mummery LJ in the case of Selkent concluded:-

“The paramount considerations are the relevant injustice and hardship involved in refusing or granting an amendment.”

It is well-established that in exercising its discretion to grant an amendment, the Tribunal is required to take into account all the circumstances and relevant factors would include the nature of the amendment, the applicability of time-limits, if any, and the timing and manner of the application, but subject to the paramount considerations set out above.

3.2 In this matter, the respondent is already required to defend a claim of constructive unfair dismissal and/or religious discrimination and I Ferrity properly acknowledged that he was unable to suggest, if leave to amend was granted, any additional prejudice to the respondent, other than having to defend the additional claim of age discrimination.

3.3 I have considerable concern that, despite the fact that the claimant brought her claim on 8 I 2008 and during the period September 2008 to March 2009 the claimant was legally represented, that it was not until the claimant appeared, without legal representation, at the Case Management Discussion on 12 March 2009, the issue of the claimant making a claim of age discrimination was raised by her (see further Paragraphs 2.2 – 2.6 of this decision and the matters referred to therein). However, despite my said concern, I am satisfied, in the circumstances, that the greater injustice and hardship would be to the claimant if she was not given the opportunity to allow the Tribunal to determine this additional claim of age discrimination.

Therefore, subject to the matter addressed later in this decision, I am satisfied that, in the exercise of my discretion, it would have been appropriate for me to grant the claimant leave to amend her said claim to include a claim of age discrimination.

3.4 For the avoidance of doubt, I must make clear, in reaching my decision, whether or not to grant the claimant’s application to amend her said claim, as set out above, I have not reached any conclusion as to the merits or strengths of the claimant’s claim of age discrimination, if any. That would be a matter for a Tribunal at any substantive hearing, if leave was given to include such a claim.

4.1 Any claim of age discrimination, is a claim that is subject to the statutory grievance procedures contained in the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) and in the Employment (Northern Ireland) Order 2003 (Dispute Resolutions) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’) – see further Schedule 3 of the 2003 Order.

Article 19 of the 2003 Order provides:-

This Article applies to the jurisdictions listed in Schedule 3.

An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies if –

(a) it concerns a matter in relation to which the requirement which the requirement in Paragraph 6 or 9 of Schedule 1 applies; and

(b) the requirement has not been complied with.

...

An industrial tribunal shall be prevented from considering a complaint presented in breach of Paragraph (2) to (4), but only if –

(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings; or

(b) the Tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with Regulations under Article 9 of the Industrial Tribunals Order (Industrial Tribunal Procedure Regulations).

Schedule 1 of the 2003 Order provides:-

Standard Procedure

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

...

9. The employee must:-

set out in writing –

the grievance; and

the basis for it; and

send the statement or a copy of it to the employer

...

4.2 Regulation 2 of the 2004 Regulations defines the following:-

grievance means a complaint by an employee about actions which his employer has taken or is contemplating taking in relation to him

dismissal has the meaning given to it in Article 127(1) (a) and (b) of the Order of 1996 (Employment Rights (Northern Ireland) Order 1996)

4.3 Article 127 of the 1996 Order provides:-

For the purposes of this part an employee is dismissed by his employer if ...

(a) the contract under which he is employed is terminated by the employer (whether with or without notice)

...

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct (ie constructive dismissal).

4.4 Under Regulation 6(5) of the 2004 Regulations, neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee. Since Regulation 2 of the 2004 Regulations, as set out above, defines dismissal as excluding constructive dismissal, the exclusion of the grievance procedures provided for in Regulation 6(5) does not, in my judgment, apply to a claim of constructive dismissal.

4.5 If a claimant, whose claim is subject to the statutory procedures, is unable to show she has brought a grievance under the statutory procedures, when she is required to do so, then issues arise under the 2003 Order and 2004 Regulations in relation to whether the Tribunal has jurisdiction to hear any such a claim.

However, in this context, it is necessary to note that although Article 19 of 2003 Order provides:-

“an employee shall not present a complaint”,

It is not necessarily out with the jurisdiction of the Tribunal to hear it, if the employee has not complied with Paragraph 6 or 9 of Schedule 1 of 2003. This is because of the terms of Article 19(6) of the 2003 Order which prevents the Tribunal from hearing the claim in only two precise circumstances. The jurisdictional bar therefore operates ‘if and only if’ the said two circumstances set out Paragraph 19(6) (a) or (b) apply (see Paragraph 4.1 above).

(See further: Elias P in case of South Kent College v Hall [EAT/0087/07].)

In this matter, no claim of age discrimination, has yet been presented to the Tribunal. However, the respondent’s representatives prior to the commencement of this hearing, in a letter dated 20 May 2009 to the Tribunal, stated:-

“For the avoidance of doubt the respondent is of the view that the Tribunal has no jurisdiction to hear any claim of age discrimination as a valid grievance has not been submitted by the claimant.”

Thus, the respondent’s representatives made it clear that, at all material times, it would be raising the issue of the Tribunal’s jurisdiction to hear any claim of age discrimination.

Both the claimant and the respondent’s representative indicated, at this hearing, they were in a position, to deal with the issue of whether the claimant had raised a grievance in accordance with the said statutory procedures.

4.6 There has been some doubt whether, a Tribunal, when it is considering an amendment application, is required to have regard, when exercising its discretion, to the fact that an issue may arise in relation to whether the relevant statutory procedures apply to any such a claim, the subject of the amendment and, if so, whether the procedures have been followed.

In Blackstones Employment Law Practice 2009, Paragraph 3.9, it is stated:-

“The position appears to be different in relation to amending the claim form. It is still not clear whether an amendment which seeks to raise a matter to which the statutory procedure applies will be allowed if the employee has not submitted a Step 1 grievance letter in relation to the matter and allowed 28 days for a response. To disallow the amendment would seem to be contrary to the overriding objective to deal with cases in a just and cost-effective manner, but to allow the amendment would enable the employee to circumvent the statutory procedure, and would potentially be open to challenge on the ground that the Tribunal has no jurisdiction under Section 32 of the Employment Act 2002 ... .”

In Employment Court Practice 2008, Paragraph 4.125, it is also suggested issues relating to compliance with the statutory grievance procedure must be a further fact to be considered in relation to any application to amend the claim. In the recent decision of the Employment Appeal Tribunal in the case of Potters & Others v Northumbria Acute Hospitals NHS Trust & Others [2009] UKEAT/0385, Mrs Justice Slade, at Paragraph 121 of her judgment, suggests that compliance with the procedure, in the context of an amendment to an existing claim, may be a relevant consideration in exercising the discretion to amend the claim but not as a bar to such an amendment.

4.7 The claimant produced a copy of her letter of grievance dated 19 January 2008 sent to the respondent. She accepted in evidence that the said letter of grievance made no reference to any claim of age discrimination; albeit she maintained it was relevant to her grievance in relation to her other said claims. In the circumstances, I had no alternative but to conclude that the claimant had not made a grievance in writing to the respondent, in accordance with the statutory procedures, in relation to any claim of age discrimination, before she made her claim to the Tribunal on 8 April 2008. If the claimant’s claim had been of unfair dismissal pursuant to Article 127(1)(a) of the 1996 Order, and not constructive dismissal pursuant to Article 127(1)(c) of the 1996 Order, issues would then have arisen whether the claimant was required to make a statutory grievance under the statutory procedures if she could show the dismissal pursuant to Article 127(1)(a) of the 1996 Order was also an act of age discrimination (see further Lawrence v HM Prison Services [2007] IRLR 468). Since the claimant’s claim of unfair dismissal was a claim of unfair constructive dismissal, I was satisfied no such issue arose and she was required, before making a claim of age discrimination, to comply with the said statutory grievance procedures.

4.8 In relation to the claimant’s claim of constructive unfair dismissal and/or religious discrimination, I am aware from the Case Management Discussion that issues arise between the parties in relation to whether or not the claimant has complied, if required to do so, with the relevant statutory procedures. For the avoidance of any doubt, I must make clear that my conclusions, as set out above, that the claimant failed to make a statutory grievance, in relation to any claim of age discrimination, before presenting her claim to the Tribunal on 8 April 2008, is of no relevance to any issue arising in relation to the statutory procedures in respect of her claim of constructive unfair dismissal and/or religious discrimination. Those issues will be a matter, if relevant, to be determined by a Tribunal hearing those claims.

4.9 In light of the foregoing, I came to the conclusion that, if I allowed the amendment of the claim form to include a claim of age discrimination, the respondent would then raise, in its response form, the issue of the jurisdiction of the Tribunal to hear the claimant’s claim of age discrimination, arising out of her failure to comply with the statutory grievance procedures. In light of my conclusion she had not made a grievance in writing to the respondent, in accordance with the statutory procedures, in relation to her claim of age discrimination before making her claim to the Tribunal, the Tribunal would then have no alternative, at a subsequent hearing, but to find it had no jurisdiction to hear any claim of age discrimination by the claimant, pursuant to Article 19(6) of the 2003 Order. In my judgment, a claimant, who has failed to comply with the statutory grievance procedures cannot, by way of a successful application for an amendment of a claim form be allowed to circumvent those statutory procedures. If there had been any issue relating to whether the claimant’s claim of age discrimination required to comply with the statutory grievance procedure and/or whether the claimant had complied with the statutory grievance procedure I would have been minded, in the exercise of my discretion, to grant leave to amend the claim to include a claim of age discrimination; but subject to the determination of such issues at a subsequent hearing, when similar issues will require to be determined by the Tribunal in relation to the claimant’s claim of unfair dismissal and religious discrimination.

4.10 In these particular circumstances, where the statutory grievance procedures have not been complied with, I therefore considered it was a relevant factor, in the exercise of my discretion, whether or not to grant leave to amend a claim, to take into account whether or not the claimant had complied with the statutory grievance procedure. I also considered it was appropriate to do so, having regard to the terms of the overriding objective; since to allow the amendment and subsequently, at a later hearing, to have the claim dismissed, because the Tribunal had no jurisdiction, would not be dealing with the case justly and, in particular, would not be ensuring the case was dealt with expeditiously and fairly nor would it save expense.

4.11 Since the claimant had not complied with the statutory grievance procedures, I therefore decided, in the exercise of my discretion, to refuse the claimant’s application for leave to amend her claim to include in her claim form a claim of age discrimination.

Chairman:

Date and place of hearing: 22 May 2009, Belfast

Date decision recorded in register and issued to parties: