Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1525/05

CLAIMANT: Hazel Anne Giboney

RESPONDENT: PSNI

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant is given leave to amend her claim so as to include the following claim:-

"The Claimant further claims that the refusal by the Respondent to permit her to take a pension by reason of her injury at work amounts to indirect sex discrimination, [ ] … contravening the Sex Discrimination (Northern Ireland) Order 1976, by virtue of the number of females in relation to males in the part-time reserve of the RUC as was, and now, the PSNI."

Constitution of Tribunal:

Chairman (sitting alone): Mr P Buggy

Appearances:

The claimant was represented by Mr J O'Hara, Queen's Counsel, instructed by Babington & Croasdaile, Solicitors.

The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by The Crown Solicitor's Office.

REASONS

1. These proceedings began on 8 November 2005. At paragraph 13 of the claim form, the claimant stated her claim in the following terms:-

"I have been refused to be accepted as having sustained an injury on duty at [ ] … Newtownstewart PSNI Station when I fell downstairs at that station on 15 September 2000 on the ultimate basis that I am not entitled by virtue of the Police Service of Northern Ireland Reserve [Part-time] Regulations 2004. This [was] communicated to me by my solicitor by letter of the 12^th August 2005. I believe this is in breach of The Part-Time [Prevention of Less Favourable Treatment] Regulations 2000."

2. The claimant served as a Reserve Constable from 12 December 1978. In September 2000, the claimant sustained an injury as a result of an accident which occurred at Newtownstewart PSNI Station; it appears that, while in the station, the claimant fell down a set of stairs.
3. In August 2004, the claimant applied to the PSNI for an 'injury on duty award'.
4. In September 2004, the police administration decided to refuse the award claim on the basis of the administration's determination that this claimant had failed to take reasonable care for her safety when descending the stairs. That decision was the subject of an internal appeal which was unsuccessful.
5. In May 2005, the claimant began proceedings for judicial review in respect of those determinations.
6. In the course of the investigations which were prompted by that application for a judicial review, the respondent's legal advisers came to the conclusion that the claimant had no entitlement to an injury on duty award in any event, because of the fact that, at the time of the injury, she was not in private employment. (See the Royal Ulster Constabulary (Appointment and Conditions of Service) Regulations ('the 1996 Regulations'), as amended).
7. It seems that Regulation 17 of the 1996 Regulations is applicable to the circumstances of the claimant's injury. The effect of Regulation 17 is that it is only where a member of the Reserve loses remuneration in her private employment, in consequence of an injury on duty, that any question of the provision of sick pay arises. (At the relevant time, the claimant did not have private employment.)
8. Accordingly, in the course of the judicial review proceedings, the respondent informed the claimant's solicitors that the effect of Regulation 17 of the 1996 Regulations was at the heart of the respondent's defence to the judicial review proceedings. Those proceedings were withdrawn earlier this year.
9. That was the background to the commencement of the present proceedings.
10. As currently pleaded, the claimant's industrial tribunal case is mainly to the following effect. According to the claimant, the respondent has breached the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000, by treating full-time officers of the Reserve more favourably than part-time officers, in that full-time officers are able to avail in certain circumstance of the advantages which flow from an injury on duty award, whereas, in much the same circumstances (as the claimant alleges) the claimant is not entitled to those advantages.
11. On 17 May 2007, at a Case Management Discussion in respect of the present proceedings, the claimant's Counsel indicated that the claimant might well seek to add a claim for indirect sex discrimination to the tribunal proceedings.
12. By letter 21 September 2007, the claimant's solicitors confirmed by letter that she was going to seek leave to amend her claim by adding the additional claim which has already been quoted above.

Some key substantive legislation provisions

13. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 [2002 No 219] ('the 2000 Regulations') provide, at Regulation 5(1), that a part-time worker has the right not to be treated by his employer less favourably than the employer treats a 'comparable' full-time worker, in various specified respects. However, Regulation 5(2) provides as follows:-

"(2) The right conferred by paragraph (1) applies only if –

(a) the treatment is on the ground that the worker is a part-time worker, and

(b) the treatment is not justified on objective grounds."

14. As originally enacted, the Sex Discrimination (Northern Ireland) Order 1976 defines indirect sex discrimination in the following terms:-

"3(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provisions of this Order if –

…

(b) he applies to her a requirement or condition which he applies or would apply equally to a man but –

(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii) which is to her detriment because she cannot comply with it."

15. The 1976 Order was amended with effect from a date in 2001. The effect of the relevant 2001 amendment was to substitute provisions, which were set out as a new Article 3(2), for the purpose of defining indirect discrimination in the context of employment. As so substituted, Article 3(2) provided as follows:-

"(2) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if –

…

(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but –

(i) which is such that it would be to the detriment of a considerably larger proportion of women than of men,

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii) which is to her detriment."

16. The Employment Equality (Sex Discrimination) Regulations 2005 [2005 No 2467] ('the 2005 Regulations') changes Article 3 of the 1976 Order again. The 2005 changes came into effect on 1 October 2005. As modified by the 2005 Regulations, Article 3(2) of the 1976 Order defines indirect discrimination in the following terms:-

"(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but –

(i) which puts or would put women at a particular disadvantage when compared with men,

(ii) which puts her at that disadvantage, and

(iii) which she cannot show to be a proportionate means of achieving a legitimate aim."

17. The concept of objective justification is an important concept in the context of Regulation 5 of the 2000 Regulations, in the context of Article 3(1) of the 1976 Order prior to the 2001 amendments, in the context of the version of Article 3(2) of the 1976 Order which came into force as a result of the 2001 amendments, and in the context of the 2005 amendments of the 1976 Order.
18. In all of those contexts, objective justification involves treatment which:-

(1) is accorded with a view to achieving a legitimate objective; and

(2) is 'necessary' to achieve that objective; and

(3) is an appropriate way to achieve that objective.

19. Under the part-time workers legislation, justification is relevant in the context of a comparison between the treatment accorded to part-time workers and the treatment accorded to 'comparable' full-time workers, whereas under the various versions of the sex discrimination legislation, consideration of the relevant impact involves a comparison between women and men. However, under all of the relevant provisions, the concept of justification is important and involves essentially the same elements (a legitimate aim, pursued by appropriate and proportionate means).

Some significant procedural legislation

20. Article 76(1) of the 1976 Order sets out the primary limitation period in respect of sex discrimination. Article 76(1) sets out what amounts to a general rule, which is that an industrial tribunal is precluded from considering a complaint unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done. However, Article 76(5) provides for exceptions to that general rule, in the following terms:-

"(5) A court or tribunal may nevertheless consider any such complaint … which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

21. Rule 10(1)(q) of the Industrial Tribunals Rules of Procedure 2005 ('the Rules') empower a chairman, on the application of a party, to make an order giving leave to amend the claim.
22. The parties have helpfully provided written skeleton arguments. In those circumstances, it is not necessary for me set out a comprehensive statement of all of those arguments.
23. I drew the attention of the parties to the House of Lords decision in Horton v Sadler [2006] UKHL 27. I also let the parties have a copy of a recent decision of my own, made in the context of an application for amendment of a claim, in the case of Higgins v D Hyndman & Son Bakers Limited [Case Reference No: 514/02]. In making that decision available, I stressed two matters. First, I recognised that my decision in Higgins was of no precedent value whatsoever. Secondly, I drew the parties' attention to the fact that the Higgins decision was currently the subject of an application for review (pursuant to Rule 34 of the Rules).
24. Ms Murnaghan very fairly and appropriately accepted that this was not a case in which matters relating to the cogency of evidence could be put to the forefront of the defence to the application for leave to amend.

The law

25. 'Harvey on Industrial Relations and Employment Law' ('Harvey'), at paragraphs 311 to 312.06 of Division T, deals with amendments to claims. Harvey categorises relevant amendments as follows:-

(i) amendments which are merely designed to alter the basis of an existing claim, but 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 wholly new claim or cause of action which is not connected to the original claim at all.

26. Mr O'Hara argued that this is a category (ii) amendment situation, while Ms Murnaghan argued that this is a category (iii) amendment situation. For the purpose of determining this application, I have assumed that this is a category (iii) case.

27. Selkent Bus Company v Moore [1996] IRLR 661 is clearly a case of central importance in the present context. In Selkent, Mummery LJ emphasised that, in refusing or granting an amendment, the paramount considerations are the relative injustice and hardship involved for each party.

27. Because I have decided to treat this as a category (iii) case, an important question, in the context of the application for leave to amend, is the question of whether or not it would be appropriate to extend the time limit if this amendment was being pursued by way of fresh proceedings.
28. According to settled case law, it is clear that, in considering whether to allow a 'just and equitable' extension to a discrimination case time limit, it is appropriate to consider the criteria which are applied in the context of deciding upon extensions of time in respect of personal injury cases.
29. In Sadler, the House of Lords considered some fundamental issues regarding the purpose of the 'discretionary exclusion of time limit for actions in respect of personal injury or death' which is provided for in Section 33 of the Limitation Act 1980.
30. Section 33(1) makes reference to the provisions of that Act which contain the primary time limits, and provides as follows:-

"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –

(a) the provisions of [the relevant primary time limits] prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this sub-section would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates."

31. Accordingly, the effect of Section 33(1) is that a court has a discretionary power to disapply a relevant primary limitation time limit if, but only if, it is satisfied that it would be 'equitable' to do so (having regard to the degree to which the relevant primary time limit prejudices the plaintiff and the degree to which the disapplication of the time limit would prejudice the defendant).
32. Sub-section (3) of Section 33 provides as follows:-

"(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent of which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the [primary time limits];

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

33. Paragraph 9 of the House of Lords judgment in Sadler shows that the exercise of the discretion under Section 33 of the 1980 Act is not reserved for the 'occasional hard case'; nor is it to be reserved for cases of an unusual nature; and that, instead, the relevant provisions give courts a wider general discretion to extend time.
34. At paragraph 32 of Sadler, Lord Bingham discusses the section 33(1) disapplication power in the following terms:-

"In resolving an application under section 33 the court must make a decision of which the inevitable effect is either to deprive the defendant of an accrued statute-barred defence or to stifle the claimant's action against the tortfeasor who caused his personal injuries. In choosing between these outcomes the court must be guided by what appears to it to be equitable, which I take to mean no more (but also no less) than fair, and it must have regard to all the circumstances of the case and in particular the six matters listed in sub-section (3)."

35. As Lord Carswell pointed out at paragraph 53 of Sadler, the prejudice to the claimant (by the operation of the primary limitation provisions) and the prejudice to the defendant (if they are disapplied) tend to be equal and opposite.
36. Against that background, the extent of any effect (of the delay) on the defendant's ability to defend is often regarded as being of paramount importance.
37. In considering the exercise of discretion under the Limitation Act, the faults of a claimant's legal advisers are not necessarily to be visited upon him personally. (See Sadler, at paragraph 53(b) and (c) of the judgment; and Harvey at T/279.01.)
38. Ms Murnaghan has helpfully drawn my attention to Housing Corporation v Bryant [1999] ICR 123. That case is not authority for the proposition that an amendment to add a new head of complaint should only be allowed if the grounds already given in the application had clearly established the requisite causal connection between the original complaint and the new head. Instead, Bryant was decided mainly on the basis of the following conclusions. First, that the original claim form could not properly be construed as already including a claim for victimisation discrimination. Secondly, that there was no material before the EAT upon which that appeal tribunal could properly conclude that the tribunals chairman, at first instance, had misdirected himself on the just and equitable issue (when that chairman had decided that it would not be just and equitable to extend time).
39. The case of Harvey v Port of Tilbury (London) Ltd [1999] IRLR 693 has also been cited on behalf of the respondent. In my view, Tilbury is not authority for any general proposition that a claimant who brings (say) an unfair dismissal complaint, alleging unfair redundancy selection, will never be able to amend out of time, by adding a complaint of disability discrimination, if the latter complaint is an entirely new cause of action unconnected with the original claim. Instead, Tilbury (like Bryant) is mainly an example of the reluctance of appellate courts and tribunals to interfere with discretionary first instance decisions which have been made in respect of just and equitable extension issues.(See, in particular, paragraphs 21, 22, 31 and 32 of Tilbury.)

Conclusions

40. I think it will be helpful if I use the Limitation Act list of factors as a handy 'check-list', while at the same time addressing some points which Ms Murnaghan has raised in the penultimate page of her skeleton arguments. However, before doing so, I wish to draw attention to two particular matters.
41. First, the primary time limit for presenting a claim of sex discrimination is only three months, as distinct from the primary time limit of three years in personal injury cases. I have to have regard to the consideration that the legislator has prescribed a very short primary time limit, which indicates a legislative policy that discrimination proceedings should be begun quickly.
42. Secondly, Ms Murnaghan argues that this amendment should not be allowed, because there is a legal interest in finality. However, if this amendment is not made, there would be nothing to stop any other Reserve officer from raising a similar issue at some point in the future. By refusing to allow any amendment in this case, the interests of finality would be served, but only to the extent of permitting the respondent to escape from any potential need (if the claimant were to be successful) to make the relevant payments to this particular claimant in this particular case (and to pay any associated award of compensation for injury to feelings).
43. I now turn to the so-called 'check-list':-

(1) The delay on the part of the claimant, in making a claim of indirect sex discrimination, has been very lengthy. There was no good reason for that delay.

(2) Having regard to the delay, the evidence adduced or likely to be adduced by the claimant or by the respondent is not likely to be significantly less cogent than if the claim of sex discrimination had been brought within the primary time limit. Issues in relation to disparate impact are likely to be of a statistical nature and the respondent's ability to produce such statistics is unlikely to have significantly diminished on account of the delay in bringing the additional claim. The issue of justification, which is likely to be at the heart of any sex discrimination proceedings, is primarily an issue of judgment (as distinct from being an evidential matter).

(3) The conduct of the respondent after the cause of action arose is not a ground which provides any basis for any argument in favour of an extension of the time limit.

(4) The plaintiff was not disabled in any relevant sense at any relevant time.

(5) The claimant's advisers did not act promptly once they knew that the relevant act or omission of the respondent might be capable of giving rise to a claim for indirect sex discrimination.

(6) I have no reason to believe that the claimant did not take adequate and timely steps to obtain appropriate legal or other expert advice.

44. Some of the factors which Ms Murnaghan has raised have not been included in the list set out in the last paragraph above. I wish to explicitly deal with some of that latter category of factors:-

(1) I cannot accept that, merely because her claim can proceed on the original basis, there would be an absence of hardship to the claimant if I were to refuse leave to amend. For all I know, she might fail on the part-time discrimination claim and she might succeed on the sex discrimination claim.

(2) A hearing which incorporates a claim for sex discrimination as well as a claim for part-time workers discrimination will obviously be longer than a claim which incorporates only a part-time worker's discrimination claim. However, in my view, that is not a good reason for declining to extend the time limit.

(3) Any inadequacies in the manner in which the claim for indirect sex discrimination has been particularised is a shortcoming which can be dealt with by a request (or order) for the provision of additional information.

(4) I deal with the grievance procedure below.

45. In considering the degree of prejudice to each party, I note that the main prejudice to the claimant is that she will lose what might be a viable claim if I do not allow this amendment. On the other hand, the prejudice to the respondent consists of the loss of a fortuitous limitation defence. (See Sadler, at paragraph 34 of the judgment.)
46. In my view, in view of all the circumstances outlined above, it would have been appropriate for a tribunal to extend the time, if the new claim was being made in fresh proceedings (as distinct from being made by way of this application for leave to amend). It follows that a refusal of leave to amend would cause greater injustice (to the claimant) than the grant of leave would cause (to the respondent).
47. Against that background, and for all the reasons outlined above, and having had regard to all the conclusions and other matters which I have set out above, I have decided to grant the claimant leave to amend the proceedings by adding the additional claim of indirect sex discrimination.

Grievance procedure issue

48. This is a decision in respect of the determination of one particular preliminary issue, which related solely to the question of whether or not the request to amend the claim should be granted.
49. On this occasion, I was not dealing with, and could not deal with, any application from the respondent pursuant to Article 19 of the Employment (Northern Ireland) Order 2003 ('the 2003 Order').
50. The 2003 Order has to be read in conjunction with the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 [2004 No 521] ('the 2004 Regulations').
51. Because I have not been dealing with the grievance issue I have not received any evidence on that issue.
52. It seems that any breach of the requirements of Article 19 of the 2003 Order will not prevent a claimant from pursuing a complaint of sex discrimination in tribunal proceedings, except in the following two situations. The first situation occurs when it is apparent to the tribunal, from the information supplied to it by the employee, that there has been a breach of the requirements of Article 19. The second situation exists if the tribunal is satisfied of such a breach as a result of the employer raising the issue of compliance. (See Article 19(6) of the Order.)
53. The relevant purpose of Article 19 (and of the associated rules) is to prevent a claimant from raising a complaint of sex discrimination with a tribunal unless and until she has exhausted internal remedies. However, in the circumstances of this case, it is not clear that the pursuit of any such internal remedies would be likely to result in a resolution of the current differences between the parties.
54. Against that background, the respondent might take the view that it would not be appropriate for the respondent to raise "the issue of compliance". However, the decision as to whether to do so must be a matter entirely for the discretion of the respondent.
55. If the respondent does decide to proceed to raise the issue of compliance (pursuant to Article 19(6) of the 2003 Order), it would be appropriate for that to be done in writing, and without delay.

Chairman:

Date and place of hearing: 17 October 2007, Belfast

Date decision recorded in register and issued to parties: