Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 282/07

CLAIMANT: Margaret Morris

RESPONDENTS: 1. O'Kane Liquor Stores Ltd

2. Declan Butler

3. Rebecca Butler

4. John Butler

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant's original claim already included a claim for victimisation arising from her existing claim, grounded in the Disability Discrimination Act 1995.

Constitution of Tribunal:

Chairman (sitting alone): Mr T Browne

Appearances:

The claimant was represented by Mr M Canavan, Solicitor, of McGuinness & Canavan, Solicitors.

The respondents were represented by Mr B Mulqueen, Barrister-at-Law, instructed by Casey & Company, Solicitors.

The issue

1. The issue at this pre-hearing review is:-

"Whether the claimant's claim form to the tribunal is sufficient on the face of it to contain an allegation of victimisation, pursuant to the Disability Discrimination Act 1995, as amended."

Findings

2. The claimant's original claim, dated 12 February 2007, was firmly grounded in the Disability Discrimination Act 1995 ('the 1995 Act'). It alleged primarily that she had been dismissed on the ground of her disability.
3. Paragraph 7.1 of her original claim included the claimant's allegation that it was not until she raised a formal grievance in January 2007 with the respondents arising from their alleged treatment of her because of her disability that she was accused by them of gross misconduct in relation to an incident alleged by them to have occurred in December 2006. She stated in her claim form:-

"It was quite clear that the warning had been given because of my grievance and that I was being harassed. I have no doubt that they would have continued to harass me."

4. It was submitted, on behalf of the respondents, that because victimisation is a specific head of claim, it ought to have been included in the original claim. Mr Mulqueen identified the existing heads of claim as:-

disability discrimination;

unfair dismissal; and

constructive dismissal.

He also stated that he was 'somewhat surprised' that victimisation on the grounds of disability had not been included as a separate allegation.

5. It was contended, on behalf of the claimant, that the claimant had made clear allegations from the outset of her claim that she was being victimised as a result of raising a grievance based upon the respondents' treatment of her in reaction to issues arising from her absence from work and limitation on her ability to perform certain tasks because of problems with her back.
6. It is, in my opinion, clear from reading the original claim details that the claimant has asserted from the outset that her allegations include that the respondents made an unfounded counter-allegation of gross misconduct against her only in response to her grievance complaint of discrimination on the grounds of her disability. Such conduct, if proved, would be a breach of S.55 of the 1995 Act.
7. Applying the guidelines in Selkent Bus Co Ltd v Moore [1996] ICR 836, I am satisfied that the claim already includes a separate heading of victimisation. In reaching that conclusion, I have weighed all the relevant factors, having regard to the interests of justice and to the relative hardship that might be caused to the parties by granting or refusing the amendment.
8. I am mindful in reaching that conclusion of the fact that the respondents have been aware from the outset of the factual allegations, which remain unchanged, giving rise to this addition. Against that, the claimant, if refused permission to amend her claim, would be deprived of a potential remedy for an allegation she has made, in clear terms, from the outset.
9. I am assisted in reaching my decision by the case of Ennevco v Metropolitan Police [EAT/0051/06]. In that case, it was held by the EAT leave to amend an existing discrimination claim to include an allegation of victimisation was appropriate because the original claim form to the tribunal could be read as including the complaint of victimisation, although additional information might be required. It is my view that the same situation seems to apply to the present case, where I conclude that the complaint of victimisation is clearly made out.
10. I therefore am satisfied that the claimant's original claim to the tribunal is sufficient on the face to it to contain an allegation of victimisation pursuant to the Disability Discrimination Act 1995.

Chairman:

Date and place of hearing: 11 April 2008, Strabane.

Date decision recorded in register and issued to parties: