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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Bailey v Belfast City Council [2010] NIFET 00065_08FET (23 February 2010)
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Cite as: [2010] NIFET 00065_08FET
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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:-
(i) The claimant’s claim presented to the Tribunal on 9 April 2008 did not include a claim of indirect discrimination on the ground of religious belief.
(ii) The Tribunal refuses the claimant’s application for leave to amend her claim to include a claim of indirect discrimination on the ground of religious belief.
(iii) The order of the Tribunal, made on 1 September 2009, for the preparation and exchange of witness statements is revoked, by consent.
Constitution of Tribunal:
Chairman (sitting alone): Mr N Drennan QC
Appearances:
The claimant appeared in person was not represented.
The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Ms D Murtagh, Solicitor, of the Office of the Director of Legal Services, Belfast City Council.
Reasons
1.1 This pre-hearing review was arranged to consider the following issues, as amended:-
“(i) Whether the claimant’s claim form includes a claim of indirect discrimination on the ground of religious belief; and, if so, whether it should be accepted by the Tribunal.
(ii) If it did not include a claim of indirect discrimination on the ground of religious belief, whether the Tribunal should grant leave to the claimant to include a claim of indirect discrimination on the ground of religious belief.”
1.2 The claimant presented a claim to the Tribunal, dated 8 April 2008, on 9 April 2008. In that claim, she made a claim of direct religious discrimination and a claim of constructive unfair dismissal. The respondent disputed the claimant had also made a claim of indirect discrimination, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘FETO’).
1.3 The claimant presented the claim herself to the Tribunal. Prior to doing so, she obtained a copy, by e-mail, of a blank claim form from the firm of solicitors who subsequently represented her, as set out elsewhere in this decision. She drafted the claim form herself; but she sent a copy to the firm of solicitors who made no comment, before she presented the claim form to the Tribunal.
Following the presentation of her claim, the firm of solicitors, who are referred to above, came on record for the claimant on or about 18 September 2008; and, in particular, were on record whenever the claimant replied by letter dated 13 February 2009 to the respondent’s Notice for Additional Information, dated 10 July 2008. Those replies were furnished by her solicitors, on her behalf, after the claimant had engaged in some form of consultation with her solicitors. The Tribunal had had to make an Order in order for the reply in letter dated 13 February 2009 to be given. The said firm of solicitors came off record on 9 March 2009. Prior to that date, a draft statement of issues had also been prepared by the claimant’s counsel, which was subsequently handed into the Tribunal, without objection, by the respondent’s representative at a Case Management Discussion on 12 March 2009, at which hearing the claimant appeared in person. The claimant made clear at that hearing, which was not disputed, that she had not previously seen or approved the draft drawn up by the counsel instructed by her former solicitors. She also made clear that she had criticisms of her former representatives in relation to the manner in which they had conducted her case on her behalf prior to their coming off record on 9 March 2009, as set above, including in relation to the drafting of the said replies dated 13 February 2009. These criticisms by the claimant are a matter between the claimant and her former representatives. However, I consider it is necessary, for the purpose of determining the issues to be decided by this Tribunal, to make some limited reference, as set out below, to the respondent’s Notice for Additional Information, dated 10 July 2008, and replies thereto, dated 13 February 2009, which were prepared on the claimant’s behalf by her former solicitors, together with the draft statement of issues, which was prepared by her former counsel and sent to the respondent’s representative, by her former solicitors, prior to the said firm of solicitors coming off record on 9 March 2009, as set out above.
1.4 At the Case Management Discussion on 12 March 2009, the claimant made reference to the fact she considered she had also made a claim of age discrimination. As a consequence, a pre-hearing review was arranged. By a decision registered and issued to the parties on 8 June 2009, I decided that:-
(i) the claimant’s claim form presented to the Tribunal on 9 April 2008 (stated in error to be 8 April 2008) did not include a claim of age discrimination; and
(ii) the claimant’s application for leave to amend her claim to include a claim of age discrimination was refused.
1.5 Following the decision on the pre-hearing review, as set out above, a further Discrimination Case Management Discussion was held on 1 September 2009 to give necessary case-management directions/orders to enable the claimant’s claims to be listed for a substantive hearing. At that hearing, the claimant repeated that the draft statement of legal and main factual issues, drafted by her former counsel, as referred to previously, was not agreed or approved by her; but, in particular, she also contended that her claim included not only a claim of direct religious discrimination but also a claim of indirect religious discrimination, pursuant to FETO.
As set out in the Record of Proceedings of that hearing, dated 7 September 2009, I recorded as follows:-
“ …
2. I have to state that until this hearing, I had not been made aware by either the claimant, or her former legal representatives, that the claimant’s claim included any claim of indirect discrimination. If there had been earlier correspondence between the parties in order to agree the said statement, it may be that this difficulty would have been highlighted and/or been able to be addressed before this hearing. If this claim does include a claim of indirect unlawful discrimination on the grounds of religious belief then neither the legal issues and/or the factual issues, relating to any such claim, have been addressed in the said statement. Mr Ferrity indicated that not only was he not made aware, prior to this hearing, that any such claim of indirect discrimination was made by the claimant; he did not accept that any such claim had been out on the claim form and he would formally object, insofar as necessary, to its inclusion. In this context, he referred to the various authorities to be found in Harvey on Industrial Relations and Employment Law, Section T, Paragraph 312.04 – 312.06 and, in particular, the Court of Appeal’s decision in Ali v Office of National Statistics [2005] IRLR 201 in which it was held that direct and indirect discrimination are different types of an unlawful act. A major difficulty in the conduct of this Case Management Discussion was that the claimant is unrepresented. She has some difficulty in understanding that it is not possible for her to merely state, without more, that her claim is of indirect unlawful discrimination under the 1998 Order. I once again stressed to the claimant that, insofar as possible, I would encourage her to seek such assistance and/or advice as she is able to obtain.
3. The claimant stated she wished to take the opportunity to consider her position and, in particular, having considered the relevant requirements of making such a claim, whether she wished to continue to contend that her claim form included a claim of indirect discrimination pursuant to the 1998 Order. In these circumstances, it was agreed, and I so ordered, that the claimant, following such further consideration, would inform the respondent’s representative on or before 15 September 2009, in writing, (with copy to the Tribunal at the same time) whether or not she was continuing to contend that her claim included a claim of indirect discrimination. … .”
The claimant by letter dated 15 September 2009 confirmed that she was making a claim of indirect religious discrimination. As a result this pre-hearing review was arranged.
1.6 I was anxious to ensure, insofar as I could, having regard to the fact that the claimant was unrepresented, and the terms of the overriding objective, that the claimant would set out clearly the claim of indirect religious discrimination relied upon by her. In these circumstances, and having confirmed that she was making a claim of indirect religious discrimination, I made relevant case-management orders to enable the claimant to set out her said claim. By Notice dated 30 September 2009, the respondent issued a Notice for Additional Information, to which the claimant replied by letter dated 14 October 2009. I also make further reference to this Notice and the replies thereto, as set out below, in order to determine the issues, the subject-matter of this pre-hearing review.
2.1 I therefore considered the first issue, namely:-
“Whether the claimant’s claim form includes a claim of indirect discrimination on the ground of religious belief.”
There was no dispute that it was 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 claim form (see further Grimmer v KLM Cityhopper [2005] IRLR 596). The claimant had ticked at Paragraph 8.1 the box ‘religious discrimination’. Neither this box nor any of the other boxes relating to claims of discrimination are broken down to refer to claims of direct/ indirect discrimination; but Paragraph 8.4 provides for a claimant to explain what discrimination he/she is complaining about. In Paragraph 8.4 the claimant gave an explanation of the discrimination she was complaining about headed ‘religious discrimination’. The claimant fairly and frankly acknowledged that, when drafting the claim form, she was not aware and/or had not appreciated there were such separate claims of direct and indirect religious discrimination (see further Ali v Office of National Statistics [2005] IRLR 201). Indeed, she informed me she had not appreciated there were two such separate claims until a conversation she had with a representative of the Labour Relations Agency shortly before the Case Management Discussion on 1 September 2009 – which had led to her application at this pre-hearing review.
In a recent decision of the Employment Appeal Tribunal, Mrs Justice Slade in the case of Baker v Commissioner of the Police of the Metropolis [UKEAT/0201/09] confirmed that a Tribunal, where it is considering whether a particular claim is raised in a claim form, must read the claim form as a whole and not to adopt a ‘technical’ approach. In the course of her judgment (Paragraph 55), Mrs Justice Slade recognised that difficulties have arisen from time to time, from insufficiently particularised claim forms in discrimination cases, particularly where they are completed without expert assistance.
In the course of her judgment, she suggests it may be helpful to review the wording of the forms. She expressly refers to the case of Ali where a claim of indirect discrimination was found to be different from one of direct discrimination. She suggests it might be possible to sub-divide the types of discrimination to enable a claimant to identify more precisely the type of discrimination of which he/she complains; and “it may be helpful to direct a claimant to say what type of discrimination listed in Box 6.1 applies to the details of the claim given in Box 6.2” (see Box 8.1/8.4 in this case). Given the number of cases where this issue has arisen in this jurisdiction, I respectfully agree with Mrs Justice Slade that this is a suggestion that might be usefully considered further by the Department for Employment & Learning in Northern Ireland in the context of any future amendment of the claim form. Such a change might have helped to avoid the problems of amendments that have arisen in this case or allowed them to be addressed at an earlier stage. The differences between the different types of discrimination (direct/ indirect/victimisation; disability-related etc) are not always appreciated by parties and, in particular, where a party is unrepresented.
2.2 In her said application, at Paragraph 8.4 of the claim form, she stated as follows:-
“In the Section 7.1 I have mentioned a female Principal Environmental Health Officer line manager and two female Senior Environmental Health Officers.
The Principal Environmental Health Officer and Senior Environmental Health Officer (who was offered the Investing for Health secondment) were authorised by management to represent the Council at strategic level; undermined my role, excluded me in using my skill and expertise as home safety officer; became named as points of contact for Home Safety within Belfast City Council; thus enhanced their position and irrevocably damaged my advancement.
The Senior Environmental Health Officer who is currently carrying out the Home Safety Officer role within the Council, is on a PO4 salary scale. My salary scale had been SO1 (£5 per hour lower salary scale).
All three of these people are younger, female Catholics.”
As indicated previously, there was no dispute between the parties that this raised a claim of direct discrimination on the ground of religious belief pursuant to FETO.
2.3 A claim of indirect religious discrimination under Article 2A of FETO provides as follows:-
“A person also discriminates against another person on the ground of religious belief … in any circumstances relevant for the purpose of any provisions referred in Paragraph (2B) if –
…
(b) he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same religious belief … as that other but –
(i) which puts or would put persons of the same religious belief … as that other at a particular disadvantage when compared with other persons;
(ii) which puts that other at that disadvantage; and
(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.”
It was readily apparent that neither Paragraph 8.1 nor 8.4 of the claim form had made reference to any of the matters which are required, as set out in Article 2A above, to be addressed in such a claim. Indeed, it would have been surprising if they had, given that the claimant was not aware of the claim of indirect religious discrimination until shortly before the Case Management Discussion on 1 September 2009.
In the context of the claimant’s claim for constructive unfair dismissal, reference is made elsewhere in the claim form to the fact that she was denied the opportunity to have a job evaluation carried out; but, in my judgment, any such reference was made in the context of the unfair dismissal claim; it was not made in the context of any indirect religious claim, pursuant to FETO.
2.4 I also had regard to the claimant’s replies dated 13 February 2009 to the respondent’s Notice for Additional Information dated 10 July 2008, which, as set out above, were sent on her behalf by her former legal representatives. Although they clearly confirm the claimant was making a claim of direct religious discrimination, again there was nothing contained therein to suggest the claim also included a claim of indirect religious discrimination. Indeed, these replies were consistent with the terms of the claimant’s claim form, and the claimant’s claim of direct religious discrimination, as referred to above. Similarly, the draft statement of legal and main factual issues drafted by the claimant’s former legal representatives, albeit not seen or approved by her, expressly stated the legal issue was a claim of direct religious discrimination. The factual issues set out in the draft statement were consistent with the said legal issue. There was no reference, either express or implied, to the matters which require to be shown, as indicated above, in relation to any claim of indirect religious discrimination.
2.5 Having considered the whole of the claim form in a non-technical way and the matters set out above, I therefore concluded the claimant’s claim presented to the Tribunal on 9 April 2008 did not include, nor indeed was ever intended to include, a claim of indirect discrimination on the ground of religious belief, pursuant to FETO.
3.1 In light of the foregoing, it was therefore necessary for me to then determine the second issue, namely:-
“Whether the Tribunal should grant leave to the claimant to include in her claim form a claim of indirect discrimination on the ground of religious belief.”
Under Rule 9(2)(p) of the Fair Employment Tribunal Rules of Procedure contained in Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, a Chairman has power to give leave to amend a claim.
Harvey on Industrial Relations and Employment Law, Volume 5, Division T, Paragraphs 311 – 312.04, deals with amendments to claims and, in particular, sets out three relevant categories of amendment:-
“(i) amendments which are merely designed to alter the basis of an existing claim, though without purporting to raise a new distinct head of complaint;
(ii) 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
(iii) amendments which add or substitute a whole new claim or cause of action, which is not connected to the original claim at all.”
As stated previously, in Ali v Office of National Statistics [2005] IRLR 201, it was held that direct and indirect discrimination are different types of unlawful act, so that where a claim of direct racial discrimination was made in time a subsequent claim of indirect discrimination made out of time could not be considered within the rubric of the original claim; but required an application for leave under the just and equitable provisions, of Section 68(6) of the Race Relations Act.
3.2 In order to consider whether the Tribunal should grant leave to amend the claimant’s claim to include a claim of indirect religious discrimination, I took the view that it was not sufficient, in relation to any such application, for the claimant merely to state, as she had done at the Case Management Discussion on 1 September 2009, that she wished to make a claim of indirect religious discrimination. I had therefore required the claimant, as I have set out previously in this decision, to set out by way of reply to a Notice for Additional Information the precise nature of the claim of indirect religious discrimination she wished to make. In the claimant’s reply to the respondent’s Notice for Additional Information dated 30 September 2009, as set out in her letter dated 14 October 2009, the claimant stated, inter alia, in support of her proposed amended claim of indirect religious discrimination:-
“(1) Indirect discrimination on the ground of my religious belief/political opinion occurred when I was persistently denied the opportunity of having a job evaluation carried out despite repeated attempts, eg submitting reports and supplying outside agencies to prove that I was actually doing what I professed to be doing. This job evaluation was denied because my ‘roles and responsibilities had not changed’. I raised my request for a job evaluation as I felt justifiably under-valued for these roles and responsibilities in comparison to other staff in similar roles within environmental health. I had also undergone structural changes within the Department which I understood entitled me to a job evaluation and was the reason that I initiated my formal request at that time.
The job evaluation process offered solely to environmental health officers created the situation whereby indirect discrimination occurred. Environmental Health Officers advanced to become Senior Environmental Health Officers during this time. This had a detrimental and irrevocable adverse effect on my chances to advance and enhance my position. My role was decimated and given to Senior Environmental Health Officers and principal environmental health officer of a different religion to further enhance their positions to my great disadvantage.
…
(4) I refer to my initial grievance letter to Belfast City Council dated 22 January 2008:
“I had tried to enhance my grading by requesting a job evaluation in September 2003 shortly after moving to Public Health and Housing from Health Promotion and Training. This was following advice from a member of Business Improvement Services within Belfast City Council. I eventually had a definitive answer to this in July 2007, my request for a job evaluation was denied.”
I was refused a secondment, even though I had put forward ‘a very strong proposal’, thus allowing Senior Environmental Health Officers and Principal Environmental Health Officers to represent the Council at strategic level regarding home safety issues. As a result of this I developed several new line managers to oversee projects that I had previously been solely responsible for.
I refer to the factual issues raised in the issues papers (bearing in mind that I did not have the chance to discuss this issue paper before Belfast City Council were given it):-
Was the claimant’s job evaluated in the period 2001 – 2008?
If not, when colleagues were having their jobs evaluated and were being upgraded?
Was the claimant afforded the same career advancement in comparison with colleagues of a different religion.
I therefore believe that my failure to be given the opportunity to be included in the job evaluation practice offered to other colleagues and the less favourable treatment arising when I was refused the secondment, resulting in the subsequent negative consequences which had a directly detrimental impact on me, are outlined within the IT1 form and have been made known from the ontset of my case.
That is why my requests includes both indirect and direct discrimination on grounds of my religion. I consider them both to be relevant to my case.”
3.3 Mr Ferrity, on behalf of the respondent, argued strongly that, what was stated by the claimant in the said replies, still did not raise a claim of indirect discrimination on the ground of religious belief. He did not dispute that the claimant had not been the subject of the job evaluation exercises; and which he accepted would be required to be considered to some limited extent by the Tribunal in the context of the claims of direct religious discrimination and/or the claim of constructive unfair dismissal. However, in particular, he submitted that the claimant, despite what had been said to her at the Case Management Discussion on 1 September 2009, had still not addressed in any way the basic requirements of any claim of indirect discrimination; and which were required to be shown by her for the purposes of Article 2A of FETO, to which reference has been made above. He submitted that there was no reference, in particular, in the said reply, to the necessary disparate impact which required to be shown by the claimant in relation to any such claim. He submitted the reply merely stated how she had been affected and the ‘directly detrimental impact’ upon her; and made no reference to the disparate impact upon any relevant religious group. Mr Ferrity argued that the claimant’s reply did not set out any claim of indirect discrimination and, in essence, on the basis of what she had set out in the reply, her claim was misconceived and had no reasonable prospect of success. In such circumstances, he submitted the application to amend should be rejected, without further consideration of any other matter. The claimant simply stated in response, that what she had set out in her reply made out a claim of indirect religious discrimination; but she did so, without any real understanding of the differences between a claim of direct and a claim of indirect discrimination and the matters/issues raised by Mr Ferrity.
Mr Ferrity further submitted that, if the Tribunal was to grant leave to amend the claimant’s claim to include a claim of indirect religious discrimination, it clearly would involve considerable interlocutory applications, not least having regard to the absence of any relevant detail in the replies referred to above. In addition, he made it clear that, if leave was granted to make such a claim, then on the basis of the said replies, to date, an application to strike-out the claim would probably be made by the respondent on the grounds that the claim was misconceived and had no reasonable prospect of success. All of this, he contended, would take additional time. In addition, it would be necessary for the respondent to obtain considerable additional evidence, much of which, due to the period of time that has elapsed since the job evaluation exercises referred to, would involve extracting relevant records from the archives, ascertaining relevant statistical evidence and identifying the relevant pool and/or religious makeup of all relevant persons. He indicated, given the period of time that has already elapsed, there was a real risk that relevant evidence would not still be archived and memories of witnesses, assuming that they were still available, might be affected with the passage of time. In any event, in order for all of these issues to be properly addressed at any Tribunal hearing, this would, in his judgment, greatly extend the length of the hearing. In addition, to the said issues of potential prejudice arising out of the memories of witnesses and/or the absence of relevant documentation in the archives, he strongly submitted that, if the application for leave was granted by the Tribunal, then the hearing already listed for the determination of the claimant’s claim of direct religious discrimination and/or unfair dismissal, which is due to commence on 12 April 2010 and to end on 23 April 2010, would inevitably have to be taken out of the list to be re-arranged at a later date. These claims had already been delayed by reason of the claimant’s earlier application for leave to include a claim of age discrimination, which was refused, as indicated above.
3.4 The claimant, who was unrepresented, still did not appear to fully appreciate the nature of the issues she was required to address in relation to such a claim of indirect religious discrimination. She said little therefore in response to the further submissions made by Mr Ferrity in relation to the weakness of the claim made by her, as set out in the said replies – save that the claimant maintained that the respondent, in her opinion, would have retained all relevant records relating to the job evaluation exercise, even if it would take time to extract all relevant records.
3.5 I have no doubt that, although the job evaluation exercises, will, as accepted by Mr Ferrity, arise to be considered by the Tribunal in connection with the claimant’s claim of direct religious discrimination and/or unfair dismissal, it will not require to be considered in the considerable detail which would be necessary in relation to any claim of indirect religious discrimination.
Given what is stated in the Ali case and the nature of the claim of indirect religious discrimination set out in the said replies, however superficially, I am not satisfied that this amendment application falls within the second category set out above in Harvey and cannot be considered to be a ‘mere re-labelling of facts’ already set out in the claim. In my judgment, I am satisfied, in order to make the amended claim, considerable additional facts will require to be addressed, which are not the subject-matter of the claim already made. I therefore concluded that this application to amend falls within the third category set out in Harvey.
3.6 In considering the third category, as set out in Harvey, namely amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all, issues of time arise. Indeed, it was not disputed by both parties that the claimant’s proposed claim of indirect religious discrimination was out of time. In order for a Tribunal to have jurisdiction to consider such a claim out of time, it is necessary for a Tribunal to extend time, pursuant to Article 46 of FETO, which provides, insofar as relevant and material, as follows:-
“46(5) A court or the Tribunal may nevertheless consider any such claim or application which is out of time if, in all the circumstances of the case, it considers it is just and equitable to do so.”
In the case of Transport & General Workers Union v Safeway Stores Ltd [2007] UKEAT/0092, Underhill J reviewed all the relevant authorities in relation to this issue of amendment and the exercise of the Tribunal’s discretion, even where the claim is out of time. Having reviewed the authorities he emphasised that:-
“A Tribunal has a discretion in any case to allow an amendment which introduces a new claim out of time.” (Paragraph 7)
“There is no absolute rule an amendment must be refused because the new claim would be out of time. It is one factor to be considered by the Tribunal in the exercise of its discretion, albeit important and potentially decisive in the exercise of the discretion.” (Paragraph 10)
However, he also acknowledged (Paragraph 13) that:-
“No doubt the greater the difference between the factual and legal issues raised by the new claim and by the old the less likely it is that it would be permitted, but that will be a discretionary consideration and not a rule of law.”
Indeed, in Mouteng v Select Services Partners Ltd [2008] UKEAT/0059/08, Elias P, as he then was, held that, in practice, it was unlikely to matter whether a Tribunal treated a claim as an amendment to which it had to apply the test adopted in Selkent Bus Company v Moore (see later) or a fresh claim to which it had to apply the just and equitable test to enable the Tribunal to consider the claim out of time. In essence, he considered the same considerations would require to be considered in either case in determining the exercise of discretion.
In a recent decision of Evershed v New Star Asset Management [2009] UKEAT/0249/09, Underhill P again reviewed the authorities in relation to amendment and confirmed his views, as previously expressed in Transport & General Workers Union v Safeway Stores Ltd. The view of Elias P and Underhill P, referred to above, are also consistent with the views previously expressed by HH Judge Clark in Lehman Brothers Ltd v Smyth [2005] UKEAT/046/05 and more recently in Enterprise Liverpool Ltd v Jonas & Others [2009] UKEAT/0112/09 in considering whether to exercise a discretion to allow an amendment, I am satisfied, in light of the above authorities, that the classic guidance is still to be found in the judgment of Mummery J, as he then was, in the case of Selkent Bus Company v Moore [1996] ICR 836, which was endorsed by the Court of Appeal in Ali v Office of National Statistics [2005] IRLR 201.
Mummery J held, in particular, that:-
“Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.”
In the case of Ali, it would appear the Court of Appeal could find little or no difference between the test of just and equitable, used when claims are out of time, and the test of balance of justice and hardship referred to in Selkent.
In Evershed v New Star Asset Management [2009] UKEAT/0249/09, Underhill P made clear that the case of Housing Corporation v Bryant [1998] ICR 123, was a particular case, which was decided on its own particular facts. In that case the claimant brought a claim of sex discrimination and unfair dismissal. Subsequently, an amendment was sought to include a claim that the dismissal constituted victimisation, pursuant to the sex discrimination legislation. The application was refused on the basis that it was a fresh claim. Buxton LJ, upholding the decision, on appeal, observed that words making the necessary causative link between the making of the complaint of discrimination and the dismissal were absent from the application. However, in the judgment of Underhill P, the absence of a causative link in a fresh claim is not conclusive against amendment; it is no more than a factor; and the weight to be given to the factor is a matter of judgment in each case. On the particular facts of the Bryant case, the absence of such a causative link was fatal to the application for amendment.
The authorities, and, in particular, Selkent would suggest that the circumstances to be taken into account in relation to any such amendment application may vary according to each case, but also suggest there are certain particular matters that will normally require to be considered, namely:-
(i) the nature of the application itself, ie it is minor or substantial;
(ii) time-limits, if applicable and relevant;
(iii) the timing and manner of the application – although a delay in itself should not be the sole reason in refusing an application, the Tribunal should nevertheless consider why it was not made earlier and why it has now been made, for example whether it was because of the discovery of new facts or new information appearing from documents disclosed in discovery.
In each case, as Mummery J emphasised in Selkent the paramount considerations still remain the relative injustice and hardship involved in refusing or granting an amendment. However, questions of delay, as results of adjournments and additional costs, particularly if they are unlikely to be recovered by the successful party are relevant in reaching a decision. As the Baker case confirms an application, which is made late in the proceedings, is but one of the considerations to be taken into account in determining an application to amend.
3.7 The claimant’s proposed amendment is not a mere technical amendment and, in my judgment, is a major amendment, involving the bringing of a new claim. The claim of indirect religious discrimination, involving claims of disparate impact, is a very different and distinct claim from a claim of direct religious discrimination, albeit there may be some limited overlap of factual matters to be determined. Indeed, I have no doubt that there are considerable differences, as illustrated above, between the factual and legal issues raised by the proposed amended claim and the claims originally presented by the claimant (see Transport & General Workers Union v Safeway Stores Ltd [2007] UKEAT/0092). If the application for leave to amend was to be granted, I was satisfied that both claims, together with the claim of unfair dismissal, would be able to be satisfactorily dealt with by a Tribunal, within the confines of one hearing. However, I equally have no doubt, if the application for leave to amend was granted, there would require to be a considerable number of additional interlocutory applications to enable the amended claim to be properly particularised. All of this inevitably will take some time and the substantive hearing already arranged for April 2010, for the claims of direct religious discrimination and unfair dismissal, would require to be taken out of the list and would be unable to be heard for some considerable time thereafter.
3.8 I am further satisfied on the basis of the submissions made to me, having considered the terms of the claimant’s replies, not only is the claimant seeking to bring a new cause of action, considerable different and additional evidence will also require to be brought in connection with any such amended claim, including, in particular, statistical evidence, and/or evidence relating to the relevant pool and/or the relevant disparate impact together with detailed evidence in relation to the job evaluation exercises, which are the focus of the claimant’s amended claim. I do not ignore the risk that some of the relevant documentation may not be able to be obtained, despite the best efforts of the respondent and that, given the passage of time, some relevant witnesses may not be available and/or their memories may have faded. However, this risk of prejudice is somewhat speculative, in the circumstances, and therefore, in my judgment, cannot be determinative of this application. However, what I do consider is of greater importance is the clear and natural consequence of the application, if granted, that considerable different and additional evidence will require to be obtained and identified, which undoubtedly will take much time, effort and expense. It will also lead to further delay in listing the substantive hearing, which will require to be listed for a further lengthy period.
There clearly has been some delay in bringing this application. It is not possible for me to ignore the fact that the claimant had, for a period at least, the benefit of legal representation; and it would appear that, although the claimant is adamant that she told her then legal representatives about all relevant matters, they did not consider it necessary to raise this issue of indirect religious discrimination at any time in replies to Notices for Additional Information/draft statement of issues/ correspondence. I appreciate that the claimant has certain criticisms of her former legal representatives but, save as set out previously, I decided it was not necessary to consider these matters any further for the purposes of this application. Indeed, I take into account what Underhill P said in Evershed (Paragraph 33):-
“ … it is not the business of the Tribunals to punish the parties (or their advisers) for their errors. In very many, perhaps most, cases where permission is given to amend the pleading, the party in question could if he had been sufficiently careful, have got it right the first time round.”
3.9 I recognise, as the claimant has very fairly and frankly acknowledged, she did not realise or know that there was any such claim of indirect religious discrimination until her conversation with the Labour Relations Agency, shortly before the Case Management Discussion on 1 September 2009. Undoubtedly, following that conversation, at that Case Management Discussion, she immediately raised the issues, which are the subject-matter of this hearing. She certainly therefore acted promptly following the conversation with the Labour Relations Agency. The claimant, following her legal representatives coming off record on or about 9 March 2009, made her application to amend the claim to include a claim of age discrimination. It seems to me somewhat surprising that, at that stage, having considered her position and the necessity to make that application and her apparent lack of satisfaction with the service of her previous legal representatives, she did not seek to ensure that there were no other potential claims which had not been made by her. Thus, although the claimant can be the subject of some criticism in failing to approach the Labour Relations Agency, and/or to seek other advice/assistance before she did, I decided it was not a determinative factor when deciding whether or not to grant the claimant’s application to amend.
3.10 Under Regulation 3 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, it is provided the Tribunal or Chairman shall seek to give effect to the overriding objective when it exercises any powers given to it or him by the Regulations, which will include the power under Regulation 9(2)(p) of the Rules of Procedure to give leave to amend the claim.
The overriding objective of the Regulations is to enable Tribunals and Chairmen to deal with cases justly; and dealing with a case justly includes, so far as practicable:-
(a) ensuring that the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the complexity and importance of the issues;
(c) ensuring it is dealt with expeditiously and fairly; and
(d) saving expense.
As Girvan LJ stated in Peifer v Castlederg High School and Western Education & Library Board [2008] NICA 49, which has now been approved in the case of Rogan v South Eastern Health & Social Care Trust [2009] NICA 47, these overriding objectives should inform the court and Tribunals in the proper conduct of proceedings, including the exercise of its powers under the Rules of Procedure, such as the power to give leave to amend a claim. In light of the matters set out above, I have no doubt that to grant leave to amend the claim to include a claim of indirect religious discrimination would carry with it the risk of further delay and increased expense.
3.11 I cannot find any specific authority which refers to consideration by a Tribunal, when determining such an application, of a factor which expressly relates to the strength or otherwise of the proposed amended claim. Indeed, I have concluded that to reach any such conclusion in connection with this application, as suggested by Mr Ferrity, namely that the proposed amended claim was in fact misconceived, would not be appropriate. I think such an issue can only be properly considered in the context of a strike-out application properly determined, pursuant to the specific Rules of Procedure, which set out the Tribunal’s powers of strike-out, on the grounds that it is misconceived and therefore has no reasonable prospect of success. Such a strike-out application can only be brought, if the application to amend the claim is successful.
However, I am of the opinion, having regard to the terms of the overriding objective, I am entitled to consider, in the exercise of my discretion, that, on the basis of the replies, which have been provided to date, if the application is granted, there will clearly require to be considerable additional interlocutory applications in relation to applications for Orders for Additional Information and/or Discovery and Inspection. All the time that this is taking place, the claimant’s claims of direct religious discrimination and/or unfair dismissal will not be able to be heard and determined by the Tribunal.
3.12 I think that it may be argued that, on the basis of the proposed amended claim and/or the said replies to the Notice for Additional Information in relation to the proposed amended claim, that the claimant has not set out the causative link, referred to in the authorities. However, as stated in the judgment of Underhill P in Evershed, the absence of a causative link in a fresh claim is not conclusive against amendment and it is no more than the factor. I think the absence of that causative link, in circumstances where the job evaluation exercises will arise, to some extent, at the hearing of the claims of direct religious discrimination and/or unfair dismissal, is therefore not such a weighty matter for me to take into account. It is certainly not determinative of this application.
3.13 Taking the above matters into consideration and carrying out the balancing exercise referred to in the Selkent case, I am satisfied that the greater hardship and injustice would be to the respondent if I was to give leave to amend the claimant’s claim to include a claim of indirect religious discrimination; and, in the circumstances, I therefore refuse the application made by the claimant to amend her claim to include an indirect discrimination claim on the ground of religious belief, pursuant to FETO. In so concluding I took into account, in particular, that the considerable additional evidence which would be required to be obtained and investigated, together with the additional length of hearing and delay to the claims already listed, together with the consequential additional time, effort and expense involved, would result in the greater hardship and injustice to the respondent.
3.14 In light of my decision to refuse the application to grant leave to amend the claimant’s claim, I did not consider it was necessary, in the circumstances, to consider further the issues which also arise in relation to whether or not the claimant had complied with the statutory grievance procedures, pursuant to the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004; and if not, whether the Tribunal should still allow the amendment or whether such a failure is merely a factor to be taken into consideration or whether it is an absolute bar to an application for amendment. (See further the authorities referred to in the decision on the pre-hearing review refusing the claimant’s application to amend the claim to include a claim of age discrimination and also the decision of Underhill P in Evershed v New Star Asset Management [2009] UKEAT/0249/09).
4. In view of the necessity to hear and determine this application, it has not been possible for the parties to comply with the timetable agreed and ordered by the Tribunal for the preparation and exchange of witness statements in relation to the claimant’s claim of direct religious discrimination and/or unfair dismissal, in respect of the hearing to commence on 12 April 2010. It was agreed, if I concluded that the application to amend should be refused, that the claimant’s claims of direct religious discrimination and/or unfair dismissal would continue to be listed from 12 – 23 April 2010; but the said orders, previously made by me, for the preparation and exchange of witness statements would be revoked and the said claims would proceed to be heard by the Tribunal, without witness statements, and by use of oral evidence in the normal way.
Chairman:
Date and place of hearing: 14 January 2010, Belfast
Date decision recorded in register and issued to parties: