Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2008/2018_07IT.html
Cite as: [2008] NIIT 2018_07IT, [2008] NIIT 2018_7IT

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THE INDUSTRIAL TRIBUNAL

CASE REF: 2018/07

CLAIMANT: Daniel Murray

RESPONDENT: Belfast Education and Library Board

DECISION ON A PRE-HEARING REVIEW

The claimant's application for amendment of his claim to include a claim for detriment due to the making of a protected disclosure is refused for the reasons set out in this decision.

Constitution of Tribunal:

Chairman (sitting alone): Miss E M McCaffrey

Appearances :

The claimant was represented by Mr G Murray.

The respondent was represented by Mr S Law BL, instructed by Michael Brown of the Education and Library Boards Legal Services.

The Issue

The issue before me was to decide whether or not to amend the claimant's claim to include a claim for detriment based on a "protected disclosure" contrary to Article 67A of the Employment Rights (Northern Ireland) 1996.

The Facts

I heard oral evidence from the claimant and submissions on behalf of both parties.

The claimant lodged a claim at the Office of the Industrial Tribunals and the Fair Employment Tribunal on 22 November 2007 alleging sex discrimination in the course of his employment as a caretaker at St John the Baptist School for Girls where he was employed by the Belfast Education and Library Board, the respondent. The claimant made a number of claims in his claim to the tribunal. On his claim form he ticked the box in paragraph 8.1 marked "Sex discrimination" and went on at paragraph 8.4 to set out the reasons why he felt he had been discriminated against. He referred to these incidents as follows:-

"1. Jokes slandering men (September 2003);

2. Taking away my job responsibilities and criticising the work I did which is usually associated with women (ongoing);

3. Not trusted with information related to female staff even though this inhibited me working effectively (18 January 05);

4. Not providing male toilet facilities;

5. Because of my size, disregard for the amount of physical labour they asked me to do (Wednesday 24 November 04); and

6. Not treated the same as women staff (February 06) (September 07)"

At paragraph 12 of his claim form the claimant set out the following claim:-

"I have suffered harassment which has manifested itself in the following forms:-

Physical conduct;

Verbal and written harassment;

Visual displays;

Isolation for non-co-operation;

Exclusion from social activities;

Coercion;

Intrusion;

Unfair and excessive criticism;

Denied training

Affected my health, confidence and morale;

I was denied my right to complain about the discrimination and back lashes made;

I was told by the BELB doctor it was perceived my complaints were not treated seriously or sensitively;

Any proposed resolution of complaints were made against me and not the respondents, my complaints were ignored;

I was harassed with counter complaints made against me when I was at home sick due to stress at work."

At a Case Management Discussion held on 21 March 2008, the claimant raised for the first time before the tribunal that he believed he had been victimised, harassed and bullied as a result of a complaint that he made alleging fraud and theft at the school where he was employed. He stated that since he had reported this he had been persecuted. Accordingly the Chairman decided that an application for amendment of the claimant's claim to include a claim of detriment arising from a protected disclosure contrary to Article 67A of the Employment Rights (NI) Order 1996 should be listed before the Industrial Tribunal and dealt with by way of pre-hearing review.

The claimant alleges that when he first started work at St John the Baptist School in September 2003 he became aware of irregular work practices. He saw that the secretary of the school was signing out cleaners an hour and a half early. There were various other irregularities in relation to the cleaners' hours and the behaviour of the school secretary, all of which were raised by the claimant with the Principal. The claimant believed that the Principal had refused to take action in relation to these matters. Eventually on 14 September 2004, he wrote a letter to Human Resources at Belfast Education and Library Board setting out his complaints and there were some meetings which followed in relation to this matter. The claimant sent a further letter on 20 October 2004 as he was disappointed at the lack of response from the respondent.

Secondly, the claimant complained on health and safety grounds about the lack of separate toilet facilities for him in the four years that he had been employed at the school.

Thirdly, the claimant alleged that in 2003 he had purchased trees for the school and that he believed that four of them had been stolen from the school by a caretaker from another school. This was reported by the claimant to the vice-principal Mrs McGowan, as the alleged theft occurred just after the summer holidays in 2004. The claimant asked Mrs McGowan to deal with the matter and she told him to leave it with her, but the claimant believed that no further action was taken. Finally, the claimant alleged that he had on a number of occasions found one of the cleaners drunk in the school and that he had reported this to Mrs McGowan the Vice-principal, but that nothing had been done about it.

The respondent noted that they had received no report or grievance in relation to the incidents involving the alleged theft of the trees or the toilet facilities as these had been dealt with internally within the school and had not been referred to Human Resources at Belfast Education and Library Board.

When it was pointed out to the claimant that he had not included any of the alleged incidents of fraud or theft in his claim form, the claimant replied that he had made complaints to his employer. He went on to say that he had taken legal advice on the content of his claim form and had initially included the claims of fraud and theft in the drafting of his form, but his solicitor had advised that he restrict his claim to one of sex discrimination and the claimant had followed that advice. While the claimant had not been familiar with the term "whistle blowing" until it was used by the Chairman hearing the Case Management Discussion, he did understand that he was reporting wrongdoing in 2004 and 2005, when he made reports of fraud, theft and wrongdoing to his line manager, the school Principal and to the respondent's Human Resources Department.

The Relevant Law and Decision

The relevant law in relation to this matter is set out at Article 67A and B of the Employment Rights (Northern Ireland) Order and at Article 71 (3) and (4) of that Order.

The relevant provisions are as follows:-

"67A – In this Order a "protected disclosure" means a qualifying disclosure (as defined by Article 67B which is made by a worker in accordance with any articles of 67C – 67H.

"67B(1) – In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure tends to show one or more of the following –

(a) that a criminal offence has been committed, is being committed or is likely to be committed;

(b) that a person has failed, is failing or is likely to fail or comply with any legal obligation to which he is subject;

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur;

(d) that the health or safety of any individual has been, is being or is likely to be endangered;

(e) that the environment has been, is being or is likely to be damaged, or;

(f) that information tending to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed."

"Article 71 (1) An employee may present a complaint to an Industrial Tribunal that he is being subjected to a detriment in contravention of Article 67M, 68, 69, 70, 70A, 70C or 70E.

"(1ZA) A worker may present a complaint to an Industrial Tribunal that he is being subjected to detriment in contravention of Article 68A……..

"(3) An Industrial Tribunal shall not consider a complaint under this Article unless it is presented –

(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure to act is part of a series of similar acts or failures, the last of them, or

(b) within such further period as the tribunal considers reasonable in the case where it is satisfied that it was not reasonably practical for the complaint to be presented before the end of that period of three months.

"(4) For the purposes of paragraph(3) when an act extends over a period, the "date of the act" means the last day of that period, and

(b) a deliberate failure to act shall be treated as done when it was decided on;…….."

On the basis of the legislation, I find that the allegations which the claimant says he made relating to failure of colleagues to work the proper hours, collusion by the school secretary in concealing this and falsifying records and his report of an alleged theft of trees from the school would all constitute protected disclosures under Article 67 (B)(1))(a) or (b). I make no finding as to whether or not these acts actually occurred as that would be a matter for the full tribunal to deal with if this matter proceeds to hearing.

In relation to the claimant's complaint about lack of separate toilet facilities, it is difficult for me to see how this could fall within any of the categories set out in Article 67(B). I do not believe that providing separate toilet facilities for the sole use of the claimant as the only male member of staff is likely to endanger his health and safety and so my finding is that was not a protected disclosure.

In relation to the question as to whether or not the claim should be amended to include the claim of detriment as a result of making a "protected disclosure", the tribunal has to consider the legislation and also the case law in relation to amendments of claims.

In relation to this matter I have been conscious in particular of the decision in Selkent Bus Company v Moore [1996] ICR 836. In that case the Employment Appeal Tribunal emphasised that the tribunal, in determining whether to grant an application to amend, must carry out a careful balancing exercise of all the relevant factors, having regard for the interest of justice and the relevant hardship that would be caused to parties by granting or refusing an amendment. The relevant factors include the nature of the amendment (in particular, whether it relates to a minor matter or a substantial alteration pleading a new cause of action) the applicability of time limits, whether the time limits should be extended and the timely nature of the application. It is relevant to consider why the application was not made earlier and why it is now being made, for example, the discovery of new facts or new information appearing from documents disclosed on discovery.

The comment is made in some of the texts that employment tribunals must distinguish between amendments which add or substitute a new claim arising out of the same facts as the original claim and those that are new claims, entirely unconnected with the original claim.

In this particular case, the claimant is seeking to raise a new claim. The allegations which he makes now do not appear in his claim to the Industrial Tribunal and these are quite different in nature to his original claims of sex discrimination.

Mr G Murray, on behalf of the claimant, asserted that the claim form does refer to complaints to Human Resources and to the claimant's line manager. It is not clear from the claim form however that these relate to the allegations of theft and fraud made against the claimant's colleagues. In fact, anyone reading that claim may more likely have the impression that the complaints related to the way that the claimant was treated in relation to his allegations of Sex Discrimination.

The disclosures to which the claimant refers occurred in 2003 and 2004 when the alleged fraudulent working practices were detected and the claimant reported this to his Line Manager and subsequently to Human Resources in September 2004. The complaint in relation to the trees, he says, occurred over the summer holidays in 2004 and he reported this to the Vice-Principal who did nothing further about it. The claimant did not raise this with Human Resources himself or make any further complaint in relation to it. Under Article 71 of the Employment Rights (Northern Ireland) Order 1996, the claim must be commenced before the Industrial Tribunal within three months of the detrimental act, or where the detrimental act or failure to act is part of a series of similar acts or failures, the last of them.

In this case, the claimant made complaints to the Principal in relation to the fraudulent working practices of his colleagues in late 2003 and also in 2004. His initial letter to Mr Robin McGreevy Head of Human Resources is dated 14 September 2004 and was sent by fax. Accordingly the respondent should have responded in relation to this matter, but the claimant says that he suffered a detriment in the respondent's failure to act and in relation to the detrimental treatment he alleges he suffered as a result . The school did hold meetings with the claimant in relation to this matter but the claimant's allegation is that they failed to take the action which he wished against his colleagues and therefore he believes that he was subjected to harassment and bullying by his colleagues. This was complained of by the claimant to Human Resources in his letter of 14 September 2004. It would appear therefore that the claimant is really complaining about the respondent's failure to respond and to deal with his complaint.

In relation to the alleged theft of trees, the claimant initially said that he had bought the trees in 2004 and then went on to say that he believed the trees had been stolen during the summer holidays of 2004 and he had reported this to the vice-principal Mrs McGowan. Accordingly it would appear that it is Mrs McGowan's failure to take action in relation to this matter on an unspecified date some time in the summer or early autumn of 2004 of which the claimant is complaining.

Decision

In my view these matters are completely new claims and are not referred to in the claim to the Industrial Tribunal alleging sex discrimination. The issue for me to decide is whether or not the claims should be amended to include what is effectively a new cause of action and whether it is appropriate to do this, given the length of time that has elapsed since the incidents and the alleged detrimental acts occurred, the possible prejudice to the respondent and the interests of justice as between the parties.

The argument was made on behalf of the respondent that the proposed amendment to the claim was substantial and would involve a new cause of action; that it was, on the face of the claim, out of time and that if the application were granted, it would involve prejudice to the respondent because so much time had passed that it would be difficult for the respondent to prepare its case, and it would add considerably to the time and expense involved in the hearing of the case as there would be additional witnesses to be called at the hearing.

It is my view that, although the claimant was not familiar with the term "protected disclosure ", more commonly known as "whistle blowing", he was well aware of the steps he had taken to report perceived wrongdoing and the impact he believed that had had on his treatment by his colleagues and his employer. These acts and the detriment he allegedly suffered as a result of his reports to the school Principal took place in 2003 and 2004, but it was only in November 2007 that the claimant lodged his claim of sex discrimination with the Office of the Industrial Tribunals. At that time, he had the assistance of legal advice from a solicitor and had included reference to the alleged fraud and theft in his draft claim form, but changed it on the basis of advice from his solicitor. So he had the knowledge of the detrimental acts complained of, which had occurred some three or four years before. The claim of detriment as a result of making a protected disclosure was, therefore, lodged outside the three month limit and so I need to consider whether it is appropriate to extend the time limit to allow the claim to be presented outside the three month time limit. The basis for extending the time limit under Article 71 (3) (b) of the Employment Rights (NI) Order 1996 is that the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the three month time limit. In this case I believe that it was practicable for the complaint to be lodged within the time limit : the claimant knew the reports he had made and the impact these had had on his relationships with colleagues, he had the benefit of advice from his lawyer, he had the opportunity to consult his trade union and so his claim could have been lodged earlier, indeed at any time after the claimant formed the view that he had suffered a detriment because of his disclosures of fraud and theft, which at the latest was when he made his complaint to the respondent's Human Resources department in September 2004. Accordingly I believe it would not be appropriate to extend the time limit to include a claim for detriment as a result of making a protected disclosure and the claimant's application is refused.

Chairman:

Place and date of hearing: Belfast, 29 April 2008

Date decision entered in the register and issued to the parties: