Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REF: 213/05

CLAIMANT: Rory Brannigan

RESPONDENT: Blinds Direct Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that leave is granted to amend the claim.

Constitution of Tribunal:

Chairman (sitting alone): Ms P Sheils

Appearances:

The claimant was represented by Dr T. McGleenan, of Counsel, instructed by Donnelly and Kinder Solicitors.

The respondent was represented by Mr P Moore, of Peninsula Business Services Limited.

The issues

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

1. Whether the claimant's claim is capable of amendment to include a claim of disability discrimination

2. If it is not capable of amendment, whether the claim of disability discrimination is outside the statutory time limits and if it would be just and equitable for the tribunal to extend the time limit

3. Whether the claimant has a disability within the meaning of Section 1 of the Disability Discrimination Act 1995

2. On consideration of these issues it was decided by this tribunal and agreed by the parties that the tribunal should rule on the first two issues in the first instance and that the third issue should be decided on another date.

Sources of evidence

3. The tribunal heard submissions from the claimant's representative and read his claim form. The tribunal heard submissions from the respondent's representative and read the respondent's response to the claim form. The tribunal considered the case law to which the respondent's representative referred it. The tribunal also considered the file and the relevant correspondence therein.

The claim and the application for amendment to the claim

4. The claimant lodged a claim alleging constructive dismissal on 19 January 2005. The claim form had attached to it two separate sheets which contained the basis of the claim, set out in paragraphs numbered 1 –18, and concluding with the words "I believe that I have been constructively dismissed." The respondents replied to the claim on 11 February 2005. The response was fulsome and was contained in separate sheets attached to the form. The respondents denied the allegation of constructive dismissal and alleged that the claimant had resigned.
5. The claimant's solicitors subsequently wrote to the Office of the Industrial Tribunals and the Fair Employment Tribunal and indicated that the claimant wished to amend his claim to include a claim for disability discrimination. The matter was referred to a Case Management Discussion on 22 June 2005 where it was listed for a pre -hearing review on the amendment point. At that discussion the claimant's solicitors were directed to provide details of the proposed amendment to the claim to the respondent. The claimant sent details of the proposed amendment to the respondent's representative, by fax dated 22 June 2005.

The submissions

Is the claim capable of amendment?

6. The claimant's case

The claimant's representative sought to rely on a leading authority on this point, Selkent Bus Co. Ltd. Ltd. V. Moore (EAT) 1996 ICR 836 and the commentary on the issue as set out in Harvey, Division 5 at Page 311. Dr McGleenan indicated that in his view the claimant's case fell into the second of three categories of possible amendment, namely the "re-labelling case" category. In this category the amendment is simply a case of adding a new label to the set of facts as have been pleaded. Mr McGleenan invited the tribunal to consider the claim form and he referred specifically to several of the numbered paragraphs on the sheet attached to the claim form, namely Paragraphs 2, 3, 7, 8, 9,11,14,15. He indicated that in each of these paragraphs the claimant had pleaded facts that were capable of being re-labelled as facts giving rise to a claim of disability discrimination.

7. Dr McGleenan went on to cross-reference the terms of the proposed amendment with each of the points in these specified numbered paragraphs. He suggested that the first sentence of the proposed amendment referred to numbered Paragraph 7 on the claim form, that the second, third and fourth sentences correlated to numbered Paragraph 9 of the claim form and that sentence five is contained in Paragraph 10.
8. Dr McGleenan also indicated that where in the proposed amendment the claimant referred to having been subject to adverse criticism this had been mentioned in his claim form at Paragraph 10, where he had been asked to carry out work for which he was not fit, this had been referred to in paragraph 9 and a reference to stress appears in Paragraph 14.
9. Dr McGleenan relied on this exercise to demonstrate that the claimant's case was the simplest and clearest example of a "re-labelling" type of amendment. He stressed that there was nothing novel in the proposed amendment, except the description of the claim being a disability discrimination claim. He stressed that there were no new facts pleaded and that therefore being surprised by any new point will not prejudice the respondent.
10. Dr McGleenan also drew the tribunal's attention to the commentary in Harvey at Paragraph 310.01 and urged that the authorities suggested that in such category 2, "re-labelling" cases courts and tribunals show a willingness to amend the pleaded claim to include a new claim where the amendment could be justified by the facts set out in the original claim. On this basis Dr McGleenan urged the tribunal to accede to the application for amendment and to amend the claim accordingly.

The respondent's reply

11. In reply, the respondent's representative indicated that it was his view that the case was in fact a type three in the Selkent classification of amendment cases. He refuted the claimant's case that this was a simple "re-labelling" case. Mr Moore urged the tribunal to consider the claim form and he stressed that this had been submitted to the tribunal having been signed by a firm of solicitors on the claimant's behalf. He drew the tribunal's specific attention to Paragraph 9 on the claim form, both to the question asked there and the specific answer to that question given by the claimant. Paragraph 9 asks the claimant to state the type of complaint the tribunal is to consider. This was answered by the claimant with the words " Constructive Dismissal". Mr Moore urged that there were no ambiguities in these words and that there was no reference at this point on the claim form to disability discrimination.
12. Mr Moore then referred the tribunal to Paragraph 12 of the claim form whereat the claimant is asked to indicate when the matter he is complaining about happened. The claimant answered this with a date, 13 December 2004. Again Mr Moore stressed that there were no ambiguities to this answer.
13. Mr Moore then advised the tribunal that the respondent is aware of only one act or action that took place on the stated date and that in no way could that act be described as an act of disability discrimination.
14. Mr Moore then addressed the paragraphs on the sheet that was attached to and forms part of the claim form. While he agreed that several of these, namely Paragraphs 2, 3, 6, 7, 8, 9, 11, and 14 all refer to the claimant's attendance at doctors' appointments or to his having various different illnesses none of them refers to a disability or how it manifested itself.
15. Mr Moore drew the tribunal's attention to Paragraphs 17 and 8 of the claim form and he urged that the claims made in these contained no ambiguities and makes no mention of disability discrimination. Mr Moore submitted that the claim form is the document in the case that is completed closest in time to the facts that give rise to the claim. Mr Moore asked the tribunal to note this and the fact that nowhere on this form had the claimant referred to having been dismissed on medical grounds or had he referred to disability discrimination.
16. Mr Moore indicated that these points evidenced that this case was in the type three category of amendment cases, in other words that the claimant was making a fresh claim and not seeking to have the same facts "re-labelled".
17. Mr Moore submitted that the suggestions made by the claimant that the terms of the proposed amendment are already set out in the claim form are not valid. He rejected the claimant's case that this application for an amendment to the claim was a simple "re-labelling" of facts already presented. He drew the tribunal's attention to the particulars as set out in the claim form and asked the tribunal to note that on no occasion in these did the claimant refer to having a disability, or as having suffered disability discrimination.

The law

18. The Rules

Under Schedule, Rule 10 ((2) (q) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 the tribunal has the discretion to give leave to amend a claim. Any such amendment must be made in the context of the requirement for the tribunal to exercise it on the basis of what is just and equitable and also in the context of the principles of the relevant case law. In particular the tribunal was mindful of the guiding principles set out by Mummery J in Selkent Bus Co. Ltd v Moore [1996] IRLR 661 which should govern the exercise of this kind of judicial discretion, that it must be exercised "in a manner which satisfies the requirements of relevance reason justice and fairness inherent in all judicial discretions." The tribunal was also mindful of the need to balance the potential hardship and injustice faced by the parties consequent to any amendment.

19. Case Law

The tribunal considered the Selkent authority to which it was referred and other leading authorities in this area, in particular Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650, (where relevant) and Jesuthasan v Hammersmith and Fulham London Borough Council [1998] IRLR372.

The tribunal's Conclusions

20. The Selkent case usefully sets out comprehensively three types of amendment applications. Having carefully reflected on the submissions in this case the tribunal concludes that this is a type two category of amendment application, which is to say that the amendment application raises no new facts but seeks only to "re-label" the existing facts, by attaching a new label to them. There are no new facts that must be pleaded. The claimant seeks to rely on the same medical evidence he would have done in the first claim. The tribunal also concluded that on this basis any prejudice, (or hardship or injustice), to the respondent is out weighed by the prejudice,(or hardship or injustice),that would be caused to the claimant if the claim were not amended and he were not allowed to bring a disability discrimination claim based on the same set of facts.
21. This type of re-labelling amendment does not raise any time limit issue. The claim, which was lodged within the time limit, is merely re-labelled and is considered to have been made within that time period.
22. Accordingly leave is granted to amend the claim.

Chairman:

Date and place of hearing: 7 December 2005, Belfast.

Date decision recorded in register and issued to parties: