Industrial Tribunals Northern Ireland Decisions

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McAuley v Advent Properties Ltd [2009] NIIT 1003_08IT (14 January 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/01003.html
Cite as: [2009] NIIT 1003_8IT, [2009] NIIT 1003_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 01003/08

CLAIMANT: Madonna Louise McAuley

RESPONDENT: Advent Properties Ltd T/A Knockan Lodge Private Residential Care Home

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant is granted leave to amend her claim form to include a claim of victimisation.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr S A Crothers

Appearances:

The claimant was present and represented herself.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons Solicitors.

1. Issues

The issue before the tribunal was whether the claimant should be granted leave to amend her existing unfair dismissal claim to include a claim of victimisation.

2. Sources of Evidence

The tribunal heard evidence from the claimant and referred to relevant documentation.

3. The Facts

Having considered the evidence insofar as same was relevant to the issue before it, the tribunal made the following findings of fact:-

(1) The claimant presented an unfair dismissal claim to the tribunal on 9 July 2008. In paragraph 7.1 of her claim she asserts as follows:-

“My colleague has an ongoing case with equal opportunities since Sept 07 & has a case of religious discrimination & unfair dismissal with them. I attended a hearing with her as support & I think since this they have wanted me out and I feel I have been used as a scapegoat and because I work with this girl what they did to her they had to do to me.”

(2) In correspondence to the tribunal received on 4 November 2008, the claimant, in making her amendment application to include a claim of victimisation states;-

“I am writing to you to ask if it would be possible to update my case to include victimisation.  In my original IT1 form I used the words ‘I felt I had been used as a scapegoat’ and although the word victimisation was not used this I feel is what I meant.”

The respondent’s solicitors opposed any such amendment and also opposed a consolidation of the two cases in subsequent correspondence to the tribunal.

4. The claimant, in her evidence, also referred to an adverse reference having been given by the respondent in this case in connection with employment she obtained towards the end of July 2008, and relied on this as part of her victimisation complaint.  The tribunal however accepts her evidence in cross-examination, that she did not include any reference to this matter in her unfair dismissal claim and, in any event, did not know about the alleged adverse reference until after she had presented her unfair dismissal claim to the tribunal.  She has not made a separate claim regarding this issue.

Submissions

5. The respondent’s counsel urged the tribunal to reject any amendment relating to the issue of a reference. However, in relation to the other aspect of the amendment application, the respondent’s counsel conceded that the application amounted to putting a new “label” on facts already pleaded.

The Law

6. The tribunal considered a relevant extract from Harvey on Industrial Relations and Employment Law Division T at paragraph 312.01, which states as follows:-

“So far as Category (ii) is concerned, the Tribunals and Courts have always 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. It is usually described as putting a new “label” on facts already pleaded”.

Conclusion

7. Having considered the evidence together with the submissions and applied the principles of law to the findings of fact the tribunal concludes that the amendment sought (excluding the aspect of a reference), is tantamount to putting a new “label” on facts already pleaded and therefore allows the amendment to include a claim of victimisation.

Chairman:

Date and place of hearing: 7 January 2009, Belfast.

Date decision recorded in register and issued to parties: