Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2008/00704.html
Cite as: [2008] NIIT 00704_08IT, [2008] NIIT 704_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 00704/08

CLAIMANT: Andrew Nicholas Mayne

RESPONDENT: Leonard Kirk Trading as LK Electrical

DECISION ON PRE-HEARING REVIEW

The decision of the Tribunal is that the amendment to the claim is allowed.

Constitution of Tribunal:

Chairman: Ms P Sheils

Appearances:

The claimant did not appear but was represented by Mr Stephen Mearns, Solicitor, John Ross & Son, Solicitors.

The respondent did not appear and was not represented.

The Issue

1. The issue for the Tribunal was “whether the claim should be amended to include a claim for a statement of employment particulars”.

Preliminary Issue – Dismissal or Disposal of proceedings in absence of party

2. In the absence of the respondent the Tribunal considered the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, Rule 27, paragraph 5. This paragraph states:

“if a party fails to attend or to be represented (for the purpose of conducting the parties case at the hearing under Rule 26) at the time and place fixed for such hearing, the Tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.”

3. Paragraph 6 goes on to add:

“if a Tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph 5 it shall first consider any information in its possession which has been made available to it by the parties.”

4. The Tribunal had at its disposal the working file in relation to this case. The Tribunal noted that the respondent had been sent a letter dated 19 June 2008 enclosing the Notice of Hearing in relation to this preliminary matter.

5. The Tribunal also noted that Mr Mearns had sent the respondent a letter dated 7 August 2008 reminding him of the hearing date.

6. The Tribunal also noted that Mr Mearns had had without prejudice discussions with the respondent on 4 August 2008. During the course of those discussions Mr Mearns confirmed that he had reminded the respondent about the date of this hearing. Mr Mearns added that when the respondent advised Mr Mearns of his intention to defend the case, Mr Mearns had again reminded the respondent of the importance of putting in a response, and in time.

7. The Tribunal also noted from the file that the respondent had not contacted the office for any reason subsequent to the issue of the notice of the hearing and in particular that there had been no contact from the respondent with the office advising of his inability to attend this hearing today.

8. In light of the above the Tribunal decided to dispose of these proceedings in the absence of the respondent.

The Amended Application

9. The Tribunal heard submissions from Mr Mearns in respect of the claimant’s application to amend the claim. Mr Mearns stated that the claimant’s claim form had been submitted by his office to the Office of the Industrial Tribunals and the Fair Employment Tribunal by way of the online system. Mr Mearns added that this was only his firm’s first or second attempt to do so.

10. Mr Mearns stated that although his firm had clear instructions from the claimant to include the specific claim of the failure to give a statement of employment particulars he had not become aware of the failure to include this on the claim form until it was printed out, some days after it had been lodged online. Specifically the claim was lodged online on 9 May 2008 and it was not until 13 May 2008 that Mr Mearns realised that that part of the claim had been left off the form.

11. Mr Mearns indicated that he wrote to the respondent to advise him of this omission on 22 May 2008 and wrote to the Office of the Industrial Tribunals and Fair Employment Tribunal on the same date.

12. Mr Mearns stated that from his memory of events that the oversight had occurred by virtue of an administrative mistake by a member of his staff and that this was not subsequently identified by him on his reading the form.

13. Mr Mearns submitted that if the application to amend the claim were granted that the respondent would be given an opportunity to respond to this amendment in full and that the point could be tried fairly at a subsequent hearing. Mr Mearns added that the detrimental effect of not amending the claim on the claimant would be that he could lose up to four weeks wages, approximately £1000.

The Law

Under Rule 10 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 the Tribunal has a general power to manage proceedings including giving leave to amend a claim or a response. This power is a discretionary power and must be exercised by the Tribunal within the guidelines for the exercise of the judicial discretion when amending a claim as set out in the Selkent Bus Company Ltd v Moore case, EAT 1996, 836. These guidelines include the injunction that the Tribunal should take into account all the circumstances and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

The circumstances to be considered include the nature of the amendment in question, the applicability of time limits, and the timing and manner of the application. This Tribunal concluded that while the amendment in question would give the claimant a new cause of action nevertheless this new cause would arise out of facts already pleaded in the original claim.

The Tribunal also noted the claimant’s amended claim was outside the three month time limit in which the claim ought to have been lodged. The Tribunal noted that where such a claim is made out the usual time limit the Tribunal must consider whether it would have been reasonably practicable to have lodged a claim within the time limit.

The Tribunal took account of the fact that Mr Mearns stated that he believed he had lodged the claim in its entirety within the time limit and the Tribunal also noted that he sought to amend the claim within a period of time before the three month time limit ought to have expired.

Accordingly the Tribunal decided that Mr Mearns had brought the application to amend the claim as soon as was reasonably practicable for him to do so and the Tribunal decided that it would not be just to rule against a claimant on this point.

The Tribunal also took into account the timing and manner of the application to amend the claim, as per the guidelines in Selkent. The Tribunal noted that in this instance there was no significant delay in the making of the application to amend the claim and that the application to amend was made as soon as reasonably possible after the discovery of the oversight.

The Tribunal decided to allow the amendment to the claim on the basis that any hardship to the respondent could be dealt with by his having the opportunity to resist this claim at the hearing. The Tribunal balanced this with the fact that if the claim were not amended the claimant would lose out on the possible benefits of the amendment being made.

Chairman:

Date and place of hearing: 29 August 2008, Belfast

Date decision recorded in register and issued to parties:

704/08IT 4.