Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REF: 2690/04

CLAIMANT: Mary O'Kane

RESPONDENT: Just Idol Limited

t/a Diamond Insurance Services

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant's application to amend her originating claim to include a complaint of sex discrimination is dismissed.

Appearances:

The claimant was represented by Ms Siobhan O'Connor BL instructed by Caldwell and Robinson Solicitors.

The respondent was represented by Mr Alan Ferguson of Personnel and Training Services.

The claimant was dismissed by the respondent company on 29^th June 2004. An originating application was faxed to the Office of Industrial Tribunals and the Fair Employment Tribunal by the claimant's solicitor on 28^th September 2004 claiming that she had been unfairly dismissed.

By letter dated 14^th January 2005 the claimant's solicitors wrote to the Tribunal stating "we have received further instructions from our client who wishes to include sexual discrimination in her claim for unfair dismissal and we would be grateful if her application may be amended to include the same."

At the pre-hearing review it was argued by counsel for the claimant that a complaint of sex discrimination was mentioned in Item 13 on the originating application and was contained in the sentence "There was no need to dismiss me, other employees of his have been treated differently." It was argued on behalf of the claimant that this sentence was in fact a reference to a particular male employee, namely a Mr Jim Devlin or alternatively instead of "employees", the claimant in fact meant to state "male employees". The claimant's counsel accepted that the sentence was vague but that this was the claimant's complaint of sex discrimination. Counsel for the claimant had no instructions as to any reason why the claimant had not specified male employees or named Mr Devlin in the originating application. She did not know why the application to amend was not made until 14^th January 2005. She stated that there was no prejudice to the respondent but no arguments were advanced in this regard on behalf of the claimant.

On behalf of the respondent, Mr Ferguson argued that the claimant had had the benefit of legal advice in preparing her complaint to the tribunal. He pointed out that the originating application had not been faxed until the last day before the expiry of the three month limitation period for the presentation of claims and that the claimant and her legal representative had had ample time to consider the extent and content of the claim. There was no mention of sex discrimination in the IT1 and only unfair dismissal was claimed. Furthermore, the application to amend by the claimant's solicitor refers to receiving "further instructions" from the claimant and that it was made 7 months after the date of dismissal.

The tribunal considered whether it should exercise its discretion to grant leave for the amendment of the originating application and took into account the nature of the amendment, the applicability of the statutory time limits and the timing and manner of the application.

The tribunal does not accept that the originating application in its present form is capable of amounting to a complaint of sex discrimination. In order to do so the claimant must not only allege less favourable treatment but also that the reason for the less favourable treatment is on grounds of sex. The tribunal does not accept that a complaint of sex discrimination can be inferred from the sentence identified by counsel for the claimant. The tribunal does not accept that this is a case where it is simply the addition of another label to facts already pleaded, but that it does in fact constitute a new complaint of sex discrimination.

Complaints of sex discrimination must be presented to the industrial tribunal within three months of the discriminatory act, in this case 29^th June 2004. This period may be extended at the discretion of the tribunal if in all the circumstances of the case it considers that it is just and equitable to do so. The onus is on the claimant to convince the tribunal that it is just and equitable to extend the time limit. The exercise of discretion is the exception rather than the rule. The tribunal must consider the prejudice which each party would suffer as a result of granting or refusing the extension and to all the circumstances which include:

The length and reason for the delay.

The extent to which the cogency of the evidence is likely to be affected by the delay.

The extent to which the parties sued cooperated with any requests for information.

The promptness with which the claimant acted when she knew of the facts giving rise to the cause of action.

Steps taken by the claimant to obtain appropriate legal advice when she knew of the possibility of taking action.

The tribunal took into account that the claimant had sought legal advice before her complaint to the tribunal was lodged. No explanation was provided to the tribunal as to why facts which must have been in the claimant's knowledge at the time were not included in the originating application. There was no explanation to the tribunal as to why the claimant did not instruct her solicitor of an allegation of sex discrimination until almost four months after the expiry of the time limit. Having taken into account all the circumstances in the case and in the absence of any explanation whatsoever on behalf of the claimant for the reasons for the delay, the tribunal finds that it should not exercise its discretion to extend the time for presenting a claim of sex discrimination.

Accordingly the application to amend the originating application to include a claim of sex discrimination is refused.

Chairman:

Date and place of hearing: 16^th September 2005, Belfast.

Date decision recorded in register and issued to parties: