Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2008/1341_07IT.html
Cite as: [2008] NIIT 1341_7IT, [2008] NIIT 1341_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1341/07

CLAIMANT: Lisa Coreen Glenny

RESPONDENT: B E Aerospace (UK) Ltd

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 a claim that, by reason of the acts and omissions already complained of in paragraph 7.1 in the claimant's claim form, the respondent has unlawfully 'discriminated' against the claimant, contrary to the Disability Discrimination Act 1995 ('the Act') by (constructively) dismissing her.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr P Buggy

Appearances:

The claimant was represented by Mr G McGauley, Solicitor of Hagan and McConville Solicitors.

The respondent was represented by Mr R Murphy of the Engineering Employers' Federation.

REASONS

These proceedings began on 26 June 2007. The claim form shows that the claimant makes a claim in respect of unfair dismissal, by reason of the matters set out at paragraph 7.1 of the claim form. In the claim form as presented, she makes no reference to any claim for disability discrimination.

The claimant now wishes to expand her claim to include a claim that, by reason of the matters complained of at paragraph 7.1 of the claim form, the respondent has 'discriminated' within the meaning of the Act, against the claimant, by dismissing her.

After the hearing, Mr McGauley has made it clear that, in the context of the claim under the Act, the claimant is complaining of disability-related discrimination, direct discrimination and failure to make reasonable adjustments.

The claimant incurred the relevant injury in November 2006. She resigned in April 2007. The claim form was presented in June 2007. The application for amendment was first broached in January 2008.

According to Mr McGauley, it was only when he received a medical report dated 29 November 2007 that it became clear that the claimant's injuries were more severe than previously appreciated and that, as a consequence, there was a real issue as to whether she was a person who was within the class of persons who are protected against direct discrimination, disability-related discrimination and reasonable adjustments discrimination (by the Act).

According to Mr McGauley, the claimant now claims to be within that protected class because of an alleged long-term impairment which involves sensory disturbance or pain in one of her arms and weakness in a hand.

The Act stipulates the period within which proceedings must be brought. In summary, the position is as follows:-

(1) The Act provides for a primary time limit. According to that primary time limit, an industrial tribunal is not entitled to consider a complaint of unlawful discriminatory dismissal unless it is presented before the end of the period of three months beginning when the act complained of was done.

(2) However, there is a secondary time limit, which is as follows:-

'A tribunal may 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'.

The arguments

I drew the attention of the parties to a decision of my own, in the case of Giboney v PSNI (CRN1525/05), while making it clear that I recognised that the Giboney decision was of no precedent value whatsoever. I also drew the attention of the parties to the House of Lords' decision in Horton v Sadler [2006] UKHL 27.

The arguments presented on behalf of the claimant can be summarised as follows. The claimant was not in any way personally at fault on account of the delay in presenting the proposed additional claim. The claimant's solicitors were not at fault either, in that the early medical evidence did not clearly indicate that the claimant might be a disabled person. The respondent's ability to defend the claim was in no way affected by the delay.

The arguments on behalf of the respondent can be summarised as follows. The law provided for a short primary time-limit. It was public policy that claimants should speedily pursue any claims they might think they have. Although the claimant was not personally at fault, there was no good reason for the slowness of her advisors in pursuing a claim of discriminatory dismissal. Why should the respondent now have to deal with a discriminatory dismissal claim (which would be much more complex to defend, and much more expensive to defend, than an ordinary constructive dismissal claim) at this late stage?

The law

'Harvey on Industrial and Employment Law' ('Harvey'), at paragraphs 311 to 312.06 of Division T, deals with amendments to claims. Harvey categories 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.

For the purposes of determining this application, I have assumed that this is a category (iii) case.

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.

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.

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. In England and Wales, those criteria are to be found in Section 33 of the Limitation Act 1980.

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."

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).

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.

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.

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)."

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.

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.

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 see Harvey at T/279.01.)

Conclusions

The primary time limit for presenting a claim of sex discrimination is relatively short, as compared with the primary time-limit of three years in personal injury cases. I must 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 commenced quickly.

I now turn to the so-called 'checklist':-

(1) There has been a delay of about eight months, on the claimant's side of the case, in announcing the intention to make a claim for discriminatory (constructive) dismissal.

(2) I have had regard to the length of that delay, and to the fact that the respondent has always known that the subject-matter of paragraph 7.1 of the claim form was to be the basis of a constructive unfair dismissal claim. Against that background, I am satisfied that 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 discriminatory dismissal had been brought within the primary time-limit.

(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 issue of 'disability', in the sense in which that term is used in Section 33 of the Limitation Act 1980, is not a relevant issue in the present context.

(5) Having considered the content of paragraph 7.1 of the claim form and having considered the various medical reports which were provided to the claimant's solicitors, I have concluded that the claimant's advisors knew (or should have known), soon after the commencement of these proceedings, that the termination of the claimant's employment might be capable of constituting an unlawfully discriminatory dismissal, contrary to the Act, and that the claimant might be within the relevant protected class.

(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. The claimant is not personally at fault in relation to this matter.

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.)

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 proposed additional 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).

Against that background, and having had regard to all the conclusions and other matters which I have set out above, I have decided to grant this application for leave to amend the proceedings.

This is a relatively unusual case, in that the acts (including omissions) complained of in the context of the existing constructive unfair dismissal claim are precisely the same as the acts which will be the focus of complaint in the context of the proposed discriminatory constructive dismissal claim.

Chairman:

Date and place of hearing: 19 March 2008, Belfast.

Date decision recorded in register and issued to parties: