1068_05IT Latimer v Montupet (UK) Ltd [2008] NIIT 1068_05IT (23 June 2008)

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Latimer v Montupet (UK) Ltd [2008] NIIT 1068_05IT (23 June 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/1068_05IT.html
Cite as: [2008] NIIT 1068_5IT, [2008] NIIT 1068_05IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 1068/05

1512/05

CLAIMANT: WILLIAM JOHN LATIMER

RESPONDENT: MONTUPET (UK) LTD

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant's application to amend the claim form 1068/05 to include a claim of disability discrimination is granted.

Constitution of Tribunal:

Chairman: Ms M Sheehan

(sitting alone)

Appearances:

The claimant: Mr M Potter, Barrister-at-Law, instructed by Thompsons

Solicitors appeared on behalf of the claimant.

The respondent Mr P Bloch of the Employers Engineering Federation,

appeared on behalf of the respondent.

The Issues

The claims 1068/05 and 1512/05 in relation to this claimant were ordered to be considered and heard together by an earlier Order of the Tribunal. The pre-hearing review was arranged to determine the issue whether the claimant's claim allocated case reference 1068/05, can be read as in fact including a claim of disability discrimination, if not, can the claim be amended by the tribunal to include a claim of unlawful discrimination on the grounds of disability within the meaning of section 1 of the Disability Discrimination Act 1995; if not whether the tribunal considered it just and equitable to extend the time prescribed by the Disability Discrimination Act 1995 for the submission of the claimant's claim, case reference 1512/05, thereby granting the tribunal jurisdiction to hear the claimant's claim of disability discrimination as well as unfair dismissal.

Sources of Evidence

The tribunal heard oral evidence from Mr Paul J Upson on behalf of the claimant and Ms Marie Therese McGuigan, Personnel Manager, employed by the respondent. In addition the tribunal was referred to a bundle of documents numbering 234 pages, identified as "C1". The tribunal, having heard the oral evidence and considering the documentation before it, found the facts as detailed in the paragraphs below.

The Facts

The claimant on 22 July 2005 lodged with the Office of the Industrial Tribunals a complaint that he had been unfairly dismissed from his employment with the respondent by way of unfair selection for redundancy. His last date of employment was agreed as 12 May 2005.

The claimant's claim form had been ticked at question 5.4 so that his claim read that it was not about anything else other than the dismissal. The form was blank at section 8 of the form which relates to Discrimination and in bold lettering reads "please fill in this section only if you believe you have been discriminated against". The form had been completed by a trade union representative of AMICUS and signed by the claimant before being forwarded to the Office of the Industrial Tribunals and Fair Employment Tribunal in July 2005.

The claimant was one of five staff who had been selected for redundancy by the respondent in May 2005. Staff at the headquarters of the trade union sent the relevant tribunal applications to two different firms of solicitors, both based in Belfast. The two firms were F Hanna & Co and Thompsons. On or about 11 August 2005, as a result of a conversation between Mr Collins of AMICUS and Mr Upson, a solicitor employed by Thompsons, Mr Upson spoke to Mr Latimer directly by telephone with regard to the termination of his employment with the respondent. While the tribunal did not hear evidence from Mr Latimer, the tribunal is satisfied that Mr Latimer essentially left conduct of his claim with his trade union.

As a result of the telephone conversation between Mr Upson and the claimant, Mr Upson considered there was a possibility that the claimant had suffered discrimination in regard to disability in the way his employment with the respondent was terminated.

Mr Upson was aware of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. Those regulations had been commenced in April 2005. Mr Upson believed, incorrectly, that it was necessary for the claimant before he could submit a complaint to the Industrial Tribunals for disability discrimination, to comply with the statutory grievance procedures established under the Employment (Northern Ireland) Order 2003. Mr Upson drafted and forwarded by fax to the respondent a written document setting out the grievance of the claimant in respect of alleged disability discrimination. Mr Upson was open and transparent in his evidence. He accepted that his experience in employment law was limited at the time. There was no evidence of any guidance or training given to him by his employer on the new statutory procedures by August 2005. He was unaware of Regulation 6 (5) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.

Mr Upson was not the only member of the legal profession unsure as to the application of the new statutory grievance procedures as seen by the various applications considered and determined by various Employment Appeal Tribunals. The respondent on receipt of the grievance carried out a procedure in compliance with the 2003 Order. The Step 2 meeting under the statutory procedure was held on 30 August 2005. Lawrence v HM Prison Service [2007] UKEAT/0630/06 issued on 26 March 2007 involved a similar erroneous belief as that held by Mr Upson. Both parties agreed at hearing that after consideration of Regulation 6 (5) of the 2004 Regulations and this decision it is clear that the statutory grievance procedure did not in fact apply to the claim of disability discrimination by the claimant.

The grievance submitted concerned the respondent taking into account absences from employment by the claimant in the scoring system used to determine selection for redundancy. The claimant had suffered serious injuries as a result of a road traffic accident on 26 June 2003, particularly to his right arm. The claimant alleges in his grievance and his second claim, claim reference 1512/05, that the injury to his arm qualifies him as "disabled" within the meaning of the Disability Discrimination Act. The claimant was on sick leave until 8 June 2004. On 25 August 2004 he had cause to leave work due to pain in his right arm. On 26 August 2004 the claimant was absent from work as he was attending hospital, having left the hospital the previous day without seeing a doctor. The alleged discrimination concerns the respondent taking into account these disability related absences in selecting the claimant for redundancy.

The panel established by the respondent to hear the grievance consisted of Therese McGuckin and Andrew McKinty. The panel upheld the claimant's selection for redundancy. The respondent formed the view there had been no discrimination on the ground of disability and therefore advised the claimant they did not uphold his grievance. The claimant exercised his right of appeal on that decision. The appeal was heard on 6 October 2006 by Sue Bill and Jim Burke. The claimant was notified that his appeal was unsuccessful by letter dated 26 October 2006. The claimant's solicitors then submitted the further claim alleging disability discrimination arising from his selection for redundancy in May 2005. The claim form was signed by the claimant and received in the Office of the Industrial Tribunal and Fair Employment Tribunal on 7 November 2005. It was allocated case ref number 1512/05. The named personnel involved in this procedure are still employed with the respondent.

The respondent in their response to the first complaint of unfair dismissal, by way of selection for redundancy, confirmed that three criteria were used in the redundancy selection process. The criteria included absence over a fixed 12 month period between 5 March 2004 and 4 March 2005. Therese McGuckin and Mr Atkinson were involved in the initial redundancy selection process. The appeal process for the redundancy process involved Sue Bill and another whom none of the parties identified at the hearing. The named personnel involved in this procedure are still employed with the respondent.

The Contentions of the Parties

The claimant contended at hearing this was a "relabelling" case as described in Harvey on Industrial Relations and Employment Law. At paragraph 311.03 – relabelling is the term used to describe an amendment "which adds or substitutes a new cause of action but one which is linked to, or arises out of the same facts as, the original claim. Should the tribunal not agree with that argument, then the tribunal should take notice and follow the approach taken by Mr N Drennan QC in the tribunal decision of O'Neill and Hicks v Balcas Timber Ltd. The tribunal was referred to a number of decisions helpfully contained in an additional booklet prepared for the tribunal. These included Home Office v Bose [1979] and Street v Derbyshire Unemployed Workers Centre [2004]. It was accepted by the claimant that the first claim form is silent – or more than silent on disability discrimination. It is arguable that disability discrimination was not considered in the first claim form. The question when considering the issue of amendment is whether the tribunal can properly relabel the case as including a disability discrimination claim on those facts pleaded in the claim form. It was submitted that the claimant identifies sickness absence and the linkage between that absence and dismissal as the alleged unfairness in his selection for redundancy. The claimant also identifies "being on restricted duties" as another unfair element in his selection for dismissal. These are exactly the material issues for the alleged discrimination as well as the unfair dismissal claim. This similarity of grounds goes to the prejudice the tribunal has to consider in determining whether it should permit such amendment. Should the tribunal not accept those submissions then the tribunal should consider that it is "just and equitable" to accept jurisdiction in respect of the second claim lodged by the claimant in November 2005. In consideration of the tribunal's discretion the claimant referred to Harvey at paragraph 556, Kwik Save Stores Ltd v Swain and Chohan v Derby Law Centre.

The respondent contended that the law and authorities on these matters both on the issue of amendment or whether the tribunal considers it "just and equitable" to accept the subsequent claim submitted in November 2005 are well known. It was submitted the authorities are not particularly helpful in this case. On the issue of "relabelling" – paragraph 7 (1) of the form refers to absence in August 2004 relating to a previous road traffic accident. The contention that the claimant was on light duties at the relevant time is factually incorrect. The respondent accepted that McMullan J in Street v Derbyshire Unemployed Workers Centre correctly identifies and summarises the test for relabelling as set out in Housing Corporation v Bryant. There is no mention of disability by the claimant throughout the selection procedure for redundancy. The first mention of disability is on receipt of the grievance which post-dated the claimant's dismissal from his employment. The respondent would concede the statutory procedures are and did cause difficulties for all involved in their application. However the tribunal has been told nothing of the interaction between the claimant and F Hanna & Co, solicitors or of any interaction between Mr Upson and F Hanna & Co. The tribunal has not heard from the claimant. There is no evidence as to the claimant's intention – or that he wanted to raise a claim of disability. While the respondent does not dispute that case law establishes that negligence of an adviser shouldn't always be visited on the claimant, in this instance there were three advisers and the question the tribunal should ask is whether the impact of the negligence should be visited on the respondent.

On the issue of the time within which the second claim was submitted the attention of the tribunal was drawn by the respondent to the fact that the grievance was lodged on 11 August 2005 and therefore the 28 day period had passed by 9 September 2005. However the claim was not lodged until 7 November 2005. There is no law to say that the claimant had to await the outcome of the grievance procedure before submitting his claim. In determining whether it is "just and equitable" to accept the late submission of this claim the tribunal should note that the cost of medical personnel amounts to £800 a day. This does not appear to be a claim where the claimant is the moving party. His advisers appear to be the party who identified such a claim. This places the claimant's case in a different category to one where the claimant goes to seek advice on such a matter. The tribunal should take cognisance of the IDS Employment Law Handbook – page 124 onwards when looking at the issues between the parties to achieve fairness to both parties. While the Drennan decision referred to by the claimant is useful in the manner in which it sets out the law, it addressed a situation totally different to the one before this tribunal – there is no evidence that the claimant when submitting his first claim wanted to bring his claim for disability discrimination to the tribunal at a later date.

Applicable Law

Employment tribunals have a general discretion under which to grant leave to amend the claim. Selkant Bus Co Ltd v Moore [1996] IRLR 661 approved the decision in Cocking v Sandhurst Ltd [1974] ICR 650 that the discretion of a tribunal to regulate its procedure includes discretion to grant leave for the amendment of the originating application and/or notice of appearance. It is common ground that the discretion to grant leave is a judicial discretion to be exercised in a judicial manner, ie in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions. The tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Relevant circumstances are "impossible and undesirable to list them exhaustively" but will include the nature of the amendment, the applicability of time limits and the timing and manner of the application.

The jurisdiction of the tribunal in respect of the alleged discrimination claim contained in 1512/05 is dependent on the claim being presented to the tribunal before the end of the period of three months beginning when the act complained of was done. If the act complained of is the last date the claimant worked for the respondent then as the claim form was lodged on 7 November 2005, the application is more than 80 days out of time. However a tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is "just and equitable to do so".

The relevant case law considered by the tribunal included:-

Selkant Bus Co Ltd v Moore [1996] IRLR 661

Cocking v Sandhurst (Stationers) ltd [1974] ICR 650

Ali v Office of National Statistics [2005] IRLR 201

Street v Derbyshire Unemployed Workers Centre [2005] ICR 97

Housing Corporation v Bryant [1999] ICR 123

Lawrence v HM Prison Service [2007] UKEAT/0630/06

Virdi v The Commissioner of Police of Metropolis and Another [2007] IRLR

Chohan v Derby Law Centre [2004] IRLR 685

British Coal Corporation -v- Keeble and Others [1997] IRLR 336 Anderson v George S Hall Ltd EAT 0631/05

Aniagwu v London Borough of Hackney & Owen [1999] IRLR 303

Conclusions in light of the facts and law

The tribunal considered first the "nature of the amendment". The claimant submits that the amendment sought is one which adds a new cause of action but one which is linked to, or arises out of the same facts as the original claim of unfair dismissal. The alternative to this submission is that the amendment sought is one which adds a wholly new claim or cause of action which is not connected to the original claim at all. In determining the issue as to whether the proposed amendment falls within the existing claim as pleaded or constitutes an entirely new claim regard should be had to the whole of the form and not just to the general description of the complaint - Ali v Office of National Statistics. It is also true that tribunals have shown a willingness to permit a claimant to amend to allege a different type of claim from the one pleaded if this can be justified by the facts set out in the original claim – usually described as putting a new "label" on facts already pleaded. In such circumstances the proposed amendment would not be subjected to scrutiny in respect of the time limits but considered under the three general principles as summarised in Selkant and set out in paragraph 14 above. However if the amendment concerned a "new" claim unconnected with the original claim as pleaded then the time limits will require to be considered. Both parties were in agreement that McMullan J in Street v Derbyshire Unemployed Workers Centre [2005] ICR 97 set out the test for determining whether an amendment was a "relabelling" – "When considering an originating application, it was a matter of the construction of the originating application to see whether it contained the basis of the claim so that it could be adduced. Such was a technical issue, a pure point of law and not the assessment of the reality of the circumstances".

At the time that the Employment Appeal Tribunal in Street was considering that case the relevant form contained a box which invited the employee to identify the type or types of complaint they wanted the tribunal to decide. In another part of the form the employee then filled out details of the complaint. Should this tribunal follow the approach recommended in Street then the question for this tribunal becomes – whether on a correct analysis of the originating application form it can be said that it discloses a claim for disability discrimination which simply needed particularisation. Unlike the parties in the O'Neill v Balcas Timber tribunal decision to which the tribunal was referred the claimant had provided no indication on the face of his claim that he considered he had a claim for discrimination which he intended to pursue once certain steps had been taken. Instead the specific section of the form that dealt with discrimination was left blank. The tribunal has carefully scrutinised section 7.1 – and the only relevant portion is "Due to a car accident on the 26 June 2003 I believe I was selected for redundancy due to a sickness on the 26 August 2004 which was directly linked to the accident in June the previous year, The company nurse sent me to the hospital on the 25 August 2004 and the company has used this as another occasion of absence". Similar to the situation that occurred in Housing Corporation v Bryant [1999] ICR 123, the claimant and his representative in this case have failed to particularise the amendment that they would make to this section to "particularise" the claim of discrimination. The tribunal considered the particulars of the discrimination claim contained in the second claim submitted by the claimant in November 2005. It appeared to the tribunal that the details contained in section 8.4.2 contained the gist of the amendment. The potentially relevant words would be inserted after "Due to a car accident on the 26 June 2003". The appropriate amendment would be "I sustained several injuries including injuries to my right arm. As a result of the injuries that I sustained I am a disabled person for the purposes of the Disability Discrimination Act 1995". The paragraph would then continue without further amendment from "I believe I was selected for redundancy". The additional facts to be pleaded to found the claim for disability discrimination include the alleged fact that the impact of his injuries on "day to day" living means that he is disabled within the meaning of the Disability Discrimination Act 1995. This contention will require fresh primary facts to be established by evidence as to the injuries sustained and the manner in which they impact on the claimant. When that amendment is considered in the context of the whole form it appears clear to this tribunal that this amendment is not a "relabelling" but is a "new" claim only very tenuously connected with the original claim as pleaded. Accordingly the tribunal's answer on the first issue is that it is not possible to read the claimant's claim allocated case ref 1068/05 as including a claim of disability discrimination.

The tribunal to determine the second issue namely whether the claim 1068/05 can be amended to include a claim of unlawful discrimination on the grounds of disability within the meaning of section 1 of the Disability Discrimination Act 1995 will require to take into account the relevant time limits together with the timing and the manner of the application balancing the relative hardship and injustice to the parties involved in refusing or granting an amendment.

It has long been accepted, as a matter of good practice, when considering whether or not to extend time the tribunal should adopt as a checklist the various factors relevant to the limitation acts referred to in the case of British Coal Corporation -v- Keeble and Others [1997] IRLR 336. However the Court of Appeal has made it clear that it is not an error of law if a tribunal failed to go through all the said matters referred to in that case provided that no significant factor had been left out of account by the tribunal in exercising it's discretion. The factors to be considered as set out in British Coal Corporation are as follows:-

"… (a) the length of and reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(c) the extent to which the party sued had co-operated with any request for information;

(d) the promptness with which the claimant acted once he or she knew of the facts given rise to the cause of action; and

(e) the steps taken by the claimant to obtain professional advice once he or she knew of the possibility of taking action".

The claimant's employment with the respondent terminated on 12 May 2005, making that date the date of the discriminatory act. The tribunal's discretion is wide. The words "in all the circumstances of the case" refer essentially to the circumstances relating to why the claim was late. This is a case in which the delay in presenting the claim was caused by incorrect advice or action by the solicitor involved, and a failure by the trade union representative when first completing the form to identify the totality of the claim. The claimant acted promptly but clearly considered the matter was being looked after by the union and that the union would act in his best interests. It would be harsh in the opinion of this tribunal to criticise any person who is a member of a union for believing once they had referred the matter to the union, the union would look after it and act in their best interests. The claimant therefore cannot be faulted for the fact that the initial claim of unfair dismissal did not contain details of the alleged disability discrimination.

The solicitor had carriage of the claimant's case for a matter of hours before identifying during his telephone conversation with the claimant the possibility of this disability discrimination claim. The solicitor promptly lodged the grievance with the respondent. The real failure to immediately seek amendment of this claim to incorporate the discrimination claim was the misconceived belief on the part of the claimant's solicitor that it was necessary to take certain statutory steps before submitting such a claim. Like others, this tribunal recognises that the statutory grievance procedure introduced under the Employment (Northern Ireland) Order 2203 and the regulations made pursuant to that Order has resulted in considerable difficulty for those attempting to advise claimants and respondents as to their proper interpretation. I note the respondents carried out the whole of the statutory procedure in the summer of 2005, without questioning whether it was necessary for them to do so. Clearly both parties appeared to approach the issue on the basis that the said statutory grievance procedures applied.

Since the decision in Lawrence v H M Prison Service promulgated in March 2007 it is accepted that the statutory grievance procedure does not apply where claimant has been dismissed. In the cases of Virdi v- The Commissioner of Police of Metropolis and Another [2007] IRLR and Chohan v Derby Law Centre [2004] IRLR 685, tribunals have considered that it would be just and equitable to extend the time limit despite the fact that an action lay against the solicitors in both cases. The reasoning in both cases for that approach is that the legal adviser's failure should not be visited upon the claimant as otherwise the respondent would be in receipt of a windfall. In Anderson v George S Hall Ltd EAT 0631/05 the Employment Appeal tribunal took the view that the tribunal was mistaken in law to attribute delay of 14 days in submitting a discrimination claim on the part of the claimant's solicitors as a lack of promptness by the claimant. However this is just one of the factors and by itself cannot be determinative as to whether the tribunal should consider it just and equitable to permit the amendment sought.

This is not a case in which the cogency of the evidence will be affected by the delay. The respondent was on notice from 11 August 2005, within the initial three month period from the effective date of dismissal that the claimant considered that his dismissal was also related to disability related absence. The respondent promptly acknowledged receipt of that notification and the first meeting was held on 30 August 2005. It is noted that the respondent was able to provide an extremely detailed response to the claim in its repudiation of the grievance. The respondent has a good foundation for building its case. The respondent has still the relevant documentation available to meet this claim. There is indeed some duplication of witnesses who are relevant to the redundancy selection process as well as the grievance procedure.

The tribunal has considered the issue of the prejudice to both parties – or the relative injustice and hardship involved in refusing or granting an amendment. The claimant would suffer prejudice if the tribunal did not exercise its discretion to allow the amendment. The claimant, irrespective of any claim he may or may not have against his solicitor or union, would be denied access to justice. There was no undue delay in flagging up this element of the dispute. It is not the sort of case where recollections will have dimmed with the passing of years. The salient events took place in early to mid-2005. The necessary papers are still in the hands of the respondent.

The respondent did not argue that they would suffer significant prejudice but that there would be greater costs incurred by the respondent as a result of the involvement of medical expert witnesses to resolve the outstanding issue between the parties. The parties are in agreement as reflected in the Case Management Discussion dated 22 January 2008 that should either the amendment be allowed or the time extended for submission of the claim lodged in November 2005 there is a single net issue to be resolved between the parties – whether or not the claimant is "disabled" within the meaning of the "Disability Discrimination Act 1995". It is clear from the bundle placed before the tribunal that certain of the medical evidence has already been obtained by both parties. The cost of such expert witnesses was indicated to the tribunal to cost approximately £800 per day. This is a cost that both parties will have to incur. The bulk of the case it appears to this tribunal has already been considered and prepared, as the tribunal noted a pre-hearing review for the determination of the disability issue identified in the January 2008 Case Management Discussion was fixed prior to this hearing but had been postponed at the request of the parties.

As stated in Selkant Bus Co Ltd at paragraph 24 "An application should not be refused solely because there has been delay in making it". The tribunal is conscious that if the amendment is refused then the tribunal will have to determine whether it is just and equitable for the tribunal to consider the claim of disability discrimination contained in the claim lodged in November 2005. The jurisdiction of the tribunal in respect of that alleged discrimination claim is dependent on the claim being presented to the tribunal before the end of the period of three months beginning when the act complained of was done. The act complained of is arguably the latest date confirmation was given to the claimant of his selection for redundancy, namely his last date of employment with the respondent. The claim form was lodged on 7 November 2005 so the application 1512/05 is more than 80 days out of time. However as stated earlier in paragraph 15 of this decision the tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is "just and equitable to do so".

Many of the issues which fall to be considered in determining the question of whether it would be "just and equitable" to consider the disability discrimination claim have already been outlined earlier in this decision. The delay that applies in respect of the second claim involves not just the initial error of judgement. It appears that the claim was not submitted until the grievance procedure and appeal thereto was completed. The rationale for such was not made clear to the tribunal at hearing. There was no evidence given to suggest a "conscious" decision was made as was the case in Aniagwu v London Borough of Hackney & Owen [1999] IRLR 303 to delay the initiation of legal proceedings to allow an appeal process to run its course with the respondent having been made aware of that decision. The respondent is correct in their submission that the claimant could have submitted the claim once the initial 28 day period had lapsed. However the tribunal is mindful of the provisions of the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004, in particular Regulation 15 (1) and (2). Had the initial misconception of the claimant's solicitor been correct those provisions would have given cause to the solicitor to consider that the time period for submission of the claim is extended in line with those provisions. The extended period calculated in accordance with Regulation 15, had it applied would extend to 13 November 2005. The second claim was therefore submitted within that timeframe.

Accordingly while the tribunal accepts there is some prejudice to the respondent if the amendment sought is allowed the tribunal is satisfied that the prejudice is so insignificant when balanced against the potential for injustice to the claimant taking into account all the circumstances of this case that the amendment sought should not be refused. Accordingly the tribunal grants the claimant's application to amend the claim form 1068/05 to include a complaint of disability discrimination.

Should the tribunal be incorrect in law in its conclusions on the issue of granting the amendment to claim 1068/05, then the tribunal wishes to make clear it considers it just and equitable for the tribunal in all the circumstances of this case to consider the claimant's claim for disability discrimination contained in the claim 1512/05 registered in November 2005. In addition to the reasons set out at paragraphs 20 to 28 above, the tribunal in determining the presence or absence of prejudice to the parties took cognisance of the agreement between the parties there is a single net issue to be resolved if the claim is allowed to proceed – whether or not the claimant is disabled within the meaning of the Disability Discrimination Act. There is a clearly identified set of costs involved in resolving that issue. The claimant may have little remedy in the absence of that issue being determined by a tribunal. There may well be avenues for remedy for the respondent if the identification of this discrimination claim by the claimant's legal advisers is unreasonable. It appears little prejudice is caused to the respondent over and above the fact it will be caused to engage in these proceedings given the relevant issue was identified within the initial statutory period but not pursued due to a misunderstanding of the relevant legislation.

Chairman:

Date and place of hearing: 1 May 2008, Belfast

Date decision recorded in register and issued to parties:

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