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Cite as: [2008] NIIT 705_3IT, [2008] NIIT 705_03IT

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Andrews v Short Brothers PLC [2008] NIIT 705_03IT (16 January 2008)

THE INDUSTRIAL TRIBUNALS

CASE REF: 705/03

CLAIMANT: Lawrence Andrews

RESPONDENT: Short Brothers PLC

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(1) The claimant's originating application presented to the tribunal on 3 March 2003 included a claim of unlawful discrimination pursuant to the Disability Discrimination Act 1995.

(2) The respondent is given leave to amend its response, presented to the tribunal on 3 April 2003, within 21 days from the date this decision is registered and issued to the parties; to enable it to set out the details of the grounds upon which the respondent wishes to resist the claimant's said claim of unlawful discrimination pursuant to the Disability Discrimination Act 1995.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant was represented by Ms M Gavin, Solicitor, of Francis Hanna & Company, Solicitors.

The respondent was represented by Mr E R Murphy, Legal Adviser, of Engineering Employers' Federation.

Reasons

This hearing was arranged to consider the following issues, namely:-

"(1) Whether the claimant's application to the tribunal is sufficient on the face of it to contain an allegation of disability.

(2) If not, whether the application can be amended to include an allegation of unlawful disability discrimination on the basis that the claimant alleges that he was a disabled person suffering from hypertension and that he was dismissed for a reason connected to his disability.

At the outset of the hearing, both representatives, having been reminded of the relevant Rules of Procedure in relation to the giving of evidence to the tribunal, confirmed that they did not wish to call any oral evidence; but rather each would make oral submissions, on issues of law, on the basis of the documents and the agreed history of this matter, insofar as relevant and material, as set out in Paragraph 3 of this decision.

1 The claimant presented an originating claim ('the application') to the tribunal on 3 March 2003. The application was signed by the claimant. His representative, as named on the face of the application, was Jackie Pollock, who at that time was an experienced trade union official. It would appear, on the face of the application, due to the two sets of handwriting, that the application was probably filled in by two different persons. In the absence of any oral evidence from either party, as set out above, I am not prepared to come to any conclusion about who may have filled in any part of the application and, in particular, those parts of the application, as set out below.

There was no dispute between the parties that, as stated in the application, the claimant was employed by the respondent from 2 October 1979 to 6 December 2002, when his employment was terminated by the respondent.

2 The following particular paragraphs of the application are in my view, relevant and material to the determination of the issues before the tribunal:-

" …

11. Please say which type of complaint(s) you wish the tribunal to decide: unfair selection for redundancy.

12. When did the matter of which you are complaining happen: 6/12/2002.

When did you first know about this matter? 11/11/02

13. It was unfair system that I was selected for redundancy under.

I would like to challenge at tribunal the categories in which the company humiliated me with their points towards certain attributes these being productivity, quality of workmanship, attitude, + ability to work unsupervised.

Productivity:- I inspected all that was ready whether I was working on d/shift or n/shift. I used all my time working hard, yet I was awarded 210 out of 300 points.

Quality of workmanship:- I thought that it was the insp dept's task to uphold the standards and specifications on all jobs as laid out by design and the customer – a prerequisite of the job which I upheld.

Can't understand why I was awarded 240 out of 300 points.

Attitude:- yet again I was marked low, even though I never had a verbal or written warning. I always tried to show my help and co-operation in fact, I was flexible in my job by helping others.

Ability to work unsupervised:- Surely the fact that I have worked on the n/shift mostly over the past 12 years shows that I don't need to be supervised.

[Tribunal's emphasis] The assessment was for the period Oct 2001 to Sept 2002 of which I was ill from Nov 29 2001 to June 10 2002 with hypertension. I feel discriminated against as the criteria used to assess others was not used in my case.

ie 12 mths

After 25 years service I feel betrayed by the firm, because of my illness they have decided to take this opportunity to make me redundant by giving me a low score assessment.

… ."

3 The respondent presented to the tribunal on 2 April 2003 a response in which, insofar as relevant, it stated at Paragraph 7:-

"1. The applicant was not unfairly dismissed, but dismissed by reason of redundancy."

The application was originally brought by the claimant against Shorts Bombardier; but, by order dated 9 May 2003, the tribunal, at its own initiative, made an order amending the title of the respondent to that set out above, in light of the terms of the response of the respondent and the title of the respondent set out therein.

4 On 28 April 2003, following the presentation of the response, the respondent's representative served on Mr Pollock, as the claimant's representative named in the application, a Notice for Further and Better Particulars - in which the respondent sought, inter alia, insofar as relevant and material, the following particulars:-

"4. Give full particulars of each and every respect it is alleged that the criteria used to assess others discriminated against the applicant.

5. Give full particulars of the grounds which it is alleged that the company betrayed the applicant because of his illness by selecting him for redundancy."

Unfortunately, in light of the issues which are now required to be determined by this tribunal, the claimant's representative, as named in the application, Mr Pollock, nor the claimant himself, replied to the said Notice; nor did the respondent's representative pursue the failure of Mr Pollock or the claimant to reply to the said Notice nor did it make any application to obtain an Order from the tribunal compelling the claimant to reply to the said Notice. Although Mr Pollock was named on the face of the application as the claimant's representative, in the absence of any evidence before me, I am not in a position to conclude whether Mr Pollock had agreed to and/or had acted at any material time as the claimant's representative in relation to these proceedings.

5 This claim by the claimant was part of a number of claims brought against the respondent by various claimants, arising out of various redundancy exercises carried out by the respondent. Initially, in or about 2004/2005, the tribunal took steps to determine a number of 'lead' cases; but unfortunately, for reasons which are not relevant to these issues, these 'lead' cases were unable to be determined by the tribunal. Francis Hanna & Company, Solicitors, were on record for one of these 'lead' cases; and following Case Management Discussions from in or about Summer 2005, the President of the Industrial Tribunals and Fair Employment Tribunal has taken steps to enable all these claims, brought against the respondent in relation to the said redundancy exercises, to be listed for hearing before the tribunal. I understand that this has been a difficult task due, not only to the number of claims brought against the respondent, but also the multiplicity of issues that have arisen due to the various redundancy exercises carried out by the respondent, which are the subject-matter of the various claims. In or about January 2006, Francis Hanna & Company, Solicitors, came on record for the claimant in relation to this particular claim. Whilst, there were in 2006 various ongoing Case Management Discussions relating to the listing of these claims against the respondent, there was no particular relevant action taken by the tribunal in relation to this claim by the claimant. I further understand that, during this period there were also detailed attempts by the representatives of the various claimants to see if any of the said outstanding claims (including the claim of this claimant) could be resolved and, if so, which ones and under what terms. In the absence of any evidence in relation to the precise nature of any such discussions, I do not consider it would be appropriate for me, in the course of this decision, to express any view in relation to those discussions and, in particular, whether there is any link, as suggested by the respondent's representative, between the terms of settlement, which have been used to resolve some of the outstanding claims and the issues which have now to be determined by this tribunal. Although some of the outstanding claims were able to be resolved; this claim, along with others, have not been able to be resolved. All such outstanding cases have now been case-managed and have been listed for hearing.

6 By letter dated 10 January 2007, the claimant's solicitor told the respondent's representative as follows:-

" …

I refer to the above matter.

I have taken further instructions from my client who contends that he was unfairly selected for redundancy due to his illness.

In my view this case should be classified as a disability discrimination case and I propose to make application to the tribunal to classify it accordingly.

I would refer you to the IT1 and I have no doubt that you will agree that the IT1 is drafted in a manner where it is clear that it was the intention of the claimant to include the disability discrimination case.

Please confirm by return that you will consent to this application.

… ".

By letter dated 19 January 2007, the respondent's representative made it clear to the claimant's representative that the contentions/applications referred to in the letter dated 10 January 2007 would be resisted by the respondent. In particular, in light of the correspondence, it was clear that the respondent's representative did not accept that the application included any claim of disability discrimination; but also, if it did not, as it contended, it would not consent to any application to amend the application to include any such claim of disability discrimination. Clearly, in my view, having regard to the terms of the overriding objective, these issues required to be determined by the tribunal, before the application could be properly determined at a substantive hearing. In my opinion, a pre-hearing review, in the circumstances, was, under the Rules of Procedure, the appropriate manner for such issues to be determined. Unfortunately, no formal application was made to the tribunal, following the said correspondence to allow for these issues to be determined; and it was not until the Case Management Discussion, held on 6 June 2007, that the President of the Industrial Tribunals and Fair Employment Tribunal, after hearing submissions by both representatives, made an Order directing the hearing of this pre-hearing review on 2 October 2007, to deal with the matters raised in the above correspondence. Following further correspondence between the representatives, the issues to be determined by the tribunal at the said pre-hearing review were agreed by them, as set out at Paragraph 1 of this decision.

3.7 I, firstly, considered the issue, namely:-

"(1) Whether the claimant's application to the tribunal is sufficient on the face of it to contain an allegation of disability."

There was no dispute between the parties that the reference, as set out above, to the allegation of disability was a reference to a claim of unlawful discrimination pursuant to the terms of the Disability Discrimination Act 1995. In determining this issue, it was necessary to consider, in particular, the precise wording which has been used in the application, and the extracts from the application referred to above.

.1 The application was presented to the tribunal on 3 March 2003. It has to be remembered that the application was therefore presented, before the commencement, in April 2005, of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 which, under the Rules of Procedure set out in Schedule 1 of the said Regulations, the claimant is required to set out his claim in greater detail than was the case under the Rules of Procedure which were in force in 2003 and contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996.

Under Rule 1(1) of the Rules of Procedure contained in Schedule 1 of the 1996 Regulations it was provided:-

"Where proceedings are brought by an applicant, they should be instituted by the applicant presenting to the Secretary an originating application which shall be in writing and shall set out:-

(a) name and address of the applicant … ;

(b) the name and address of person or persons against whom relief is sought; and

(c) the grounds, with particulars thereof, on which relief is sought."

As Harvey on Industrial Relations and Employment Law (Paragraph T-303) makes clear, referring to the said Rules which were in force prior to the commencement of the new Rules in April 2005, as set out above:-

" … the only ground under the previous Rules for not accepting a claim was its apparent failure to seek relief which the tribunal had power to give. … The EAT took a relaxed view of deficiencies in the originating application and held that the only mandatory requirement was that the claim should be in writing, the other requirements – setting out the names and addresses of the parties and the grounds of particulars of the claim were directory only. Any defects could therefore generally be remedied by the giving of further particulars during the course of proceedings."

(See Burns International Security Services (UK) Limited v Butt [1983] ICR 547, Dodd v British Telecom PLC [1988] IRLR 16, Smith v Automobile Pty Limited [1973] ICR 306, Cocking v Sandhurst (Stationers) Limited [1974] ICR 650, Gosport Working Men's and Trade Union Club v Taylor [1978] ICR 321) ….…"

.2 Even under the new stricter 2005 Rules of Procedure, the tribunals have continued to adopt a flexible approach in these matters and the continued use of particulars, where appropriate. In the case of Grimmer v KLM City Hopper (UK) [2005] IRLR 596, it was held:-

" … accordingly, in determining whether an application to an employment tribunal contains 'details of the claim' as required under Rule 1(4), the test is whether it can be discerned from the claim as presented that the claimant is complaining of an alleged breach of an employment right which falls within the jurisdiction of the employment tribunal. If that test is met, there is no scope for either the tribunal's Secretary or a Chairman interpretating 'details of the claim' as being 'sufficient particulars of the claim'. If it becomes necessary, as the case proceeds through the system, for further information or further particulars to be obtained, that can be done either on the application of a party or by a Chairman on his or her own initiative under Rule 10."

Thus, it can be seen that the test to be applied by the tribunals in determining whether a claim has been made in a particular application/claim form is not radically different under either the old Rules of Procedure, which were applicable to this claim in 2003, or the new 2005 Rules of Procedure. The legal authorities, to which I have referred above, although not strictly binding on this tribunal are of persuasive authority and have been generally applied in this jurisdiction.

.3 There is no doubt that the answer to Paragraph 11 of the application and further the absence of any express reference in the application to disability discrimination are deficiencies; but, in view of the manner in which Rule 1(1) of the Rules of Procedure set out in Schedule 1 of the 1996 Regulations has been interpreted, as set out above, I do not consider that, by themselves, such deficiencies are determinative of the matter, in light of the terms of Paragraph 13 of the application. The claimant is clearly making a claim of unfair dismissal; but many of the matters relevant to such a claim could also be relevant, in light of the manner in which Paragraph 13 has been expressed, to a claim of disability discrimination. In particular, the claimant has expressly referred to his absence from work due to hypertension during the period of assessment; and, in that context, has referred to a feeling of discrimination in relation to the criteria used to assess him during the 12 month period, in comparison to the assessment carried out in relation to others. This specific and express reference to discrimination, arising out of his absence from work due to hypertension in relation to the assessment carried out in connection with this redundancy exercise, is strengthened, in my opinion, by the further reference, in the application, to his said illness and the respondent taking this opportunity to make him redundant by giving him a low score assessment. These matters may very well found an unfair dismissal claim in themselves; but I consider the claimant has also set out sufficient in the application to make clear that he is also including in the application a claim of disability discrimination, by his reference to the particular matters which I have referred to above. This is not a case where the claimant has made vague generalised allegations; but rather has made a specific allegation of discrimination in the context of his absence from work due to hypertension. Any deficiencies can be remedied, in my opinion, by a Notice for Particulars. Indeed, this was the very step that the respondent's representative took when it issued the Notice for Further Particulars on 28 April 2003; but unfortunately never followed-up or sought the relevant Order from the tribunal.

.4 For the avoidance of doubt, I must make clear, in reaching my decision on this issue, I have not reached any conclusion as to the merits or strengths of the claimant's claim of disability discrimination, including whether the said disability relied upon by the claimant in his application amounts to a disability within the terms of the Disability Discrimination Act 1995. I have merely concluded that the application includes a claim of disability discrimination, which ultimately will require to be determined, if necessary, by the tribunal.

In view of my decision, as set out above, it was not therefore necessary for me to further consider the said second issue to be determined by the tribunal, as set out in Paragraph 1 of this decision.

The representatives did not dispute that, if I found the claimant's application did include a claim of disability discrimination, the respondent would require to be given leave to amend its response, if it wished to do so, to set out the respondent's grounds for resisting the said claim of disability discrimination. The claimant's representative properly and fairly agreed she would have no objections to the granting of such leave by the tribunal. In the circumstances, I therefore order that the respondent be given leave to amend its response presented to the tribunal on 3 April 2003, within 21 days from the date this decision is registered and issued to the parties, to enable the respondent to set out the details of the grounds upon which the respondent wishes to resist the claimant's said claim of unlawful discrimination, pursuant to the Disability Discrimination Act 1995. If either party wishes to make any interlocutory application in relation to the said claim of disability discrimination, then this should be sought promptly in accordance with the relevant Rules of Procedure.

Chairman:

Date and place of hearing: 2 October 2007, Belfast

Date decision recorded in register and issued to parties: