Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2008/00315.html
Cite as: [2008] NIIT 315_8IT, [2008] NIIT 315_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 00315/08

CLAIMANT: John Bernard O’Lone

RESPONDENTS: 1. Downe Residential Project Limited

2. Mrs Helen Taylor

3. Mrs Christine McClean

4. Miss Cathreena Drake

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant is granted leave to amend his claim form to include a claim of discriminatory (by way of victimisation) dismissal.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr S A Crothers

Appearances:

The claimant was represented by Mr Phillips, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.

The respondents were represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons Solicitors.

ISSUES

1. The issues before the tribunal were as follows:-

(i) Whether the claimant requires the leave of the tribunal to include his claim in respect of “aunt” discrimination and, if so, whether leave should be granted.

Whether the claimant requires leave of the tribunal to include the claim of discriminatory (by way of victimisation discrimination) dismissal and, if so, whether leave should be granted.

Whether the claimant is precluded from presenting any one or more of his claims because of a failure to comply with a requirement which is mentioned in Article 19 of the Employment (Northern Ireland) Order 2003.

The representatives of both parties agreed that issues (i) and (iii) were no longer relevant and therefore only issue (ii) remained.

SOURCES OF EVIDENCE

2. The tribunal heard evidence from the claimant and was presented with bundles of documentation.

THE FACTS

3. The claimant presented claims of disability discrimination and sex discrimination to the tribunal on 11 February 2008. He claimed in paragraph 8.2 of his claim form that the matter about which he was complaining happened on 14 November 2007. Case Management Discussions were held on 28 August 2008 and 30 September 2008 respectively. The issue before the tribunal arose out of the Case Management Discussion held 30 September 2008.

4. The claimant raised a grievance with Helen Taylor, the respondent’s Chief Executive by way of an undated letter. In that correspondence he makes Helen Taylor aware that two of the respondents’ employees made telephone calls to him of a sexual nature on the weekend of Friday 9 November 2007. He claims in his grievance to have reported the phone calls and then states “I was sacked also”.

5. The tribunal examined carefully the minutes of the grievance meeting held on 15 January 2008 during which the claimant was represented by a solicitor. In those minutes it is recorded that “John also stated that he thought he got the sack due to the telephone conversations that took place the previous weekend. The reason you were dismissed was due to your timekeeping and nothing to do with the incident mentioned above”. In notes of a disciplinary meeting held on 15 January 2008 prepared by the claimant’s solicitor, it is simply recorded of the claimant that he “received telephone calls of a sexual nature from Sinead Thompson and Gary Price whilst working. Reported incident to Helen McCullough and other members of staff. Helen stated she was going to report incident to Christine McClean”. The claimant had contacted the Equality Commission on 3 January 2008 and there were subsequent contacts and correspondence culminating in a telephone conversation on 6 February 2008 pursuant to which a statutory questionnaire was forwarded to the claimant. He completed this questionnaire on 13 February 2008 and refers to his solicitor in that correspondence. The tribunal found the claimant’s evidence confusing at times. However in the absence of evidence to the contrary, the tribunal accepts that he completed the claim form to the tribunal and signed it on 7 February 2008 without assistance or advice, and that as early as 15 January 2008 his solicitor had indicated to him that she could no longer act for him, although the Solicitor’s name appears on subsequent documentation.

6. In paragraph 8.4 of his claim form the claimant does refer to the telephone conversations but does not make the case that these were the reason for his dismissal on 14 November 2007 and there is no specific claim of discriminatory (by way of victimisation discrimination) dismissal.

7. The Equality Commission came on record for the claimant on 30 June 2008 and intimated in correspondence to the respondents’ solicitor on 2 September 2008 that the proposed amendment would be sought.

SUBMISSIONS

8. The claimant’s counsel urged the tribunal to give leave to amend the claim on the basis that it was not a new claim requiring an extension of time. Alternatively, the claimant’s counsel argued that if the tribunal found that it was a new claim that time should be extended on a just and equitable basis and the balance of justice and hardship issue considered in the claimant’s favour. Counsel for the respondent urged the tribunal to disallow the amendment by urging that it constituted a new claim and that leave should not be given either on a just and equitable basis or on the balance of justice and hardship basis.

THE LAW

9. The tribunal considered carefully the extracts from Harvey on Industrial Relations and Employment Law Division T at paragraph 311ff and the case law referred to therein including the leading case of Selkent Bus Company Ltd v Moore [1996] IRLR 661.

CONCLUSION

10. Having considered the evidence together with the submissions and applied the principles of law to the findings of fact the tribunal concludes that the amendment sought constitutes a new claim but that it is just and equitable to extend the time to allow the amendment and, in the alternative, that the amendment should be allowed on the balance of justice and hardship ground.

Chairman:

Date and place of hearing: 24 October 2008, Belfast.

Date decision recorded in register and issued to parties: