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THE INDUSTRIAL TRIBUNALS

CASE REF: 1063/08

CLAIMANT: Daniel Murray

RESPONDENTS: 1. Belfast Education & Library Board

2. Miss Jill Dowie

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant’s claim form does not contain a freestanding complaint of public interest disclosure and contains a complaint of victimisation only.

Constitution of tribunal:

Chairman (sitting alone): Mr P Kinney

Appearances:

The claimant appeared and represented himself.

The respondents were represented by Mr Law, BL, instructed by the Education & Library Board’s Legal Service.

This hearing was arranged to consider the following issues:

Whether the claimant’s claim form contains a freestanding complaint of public interest disclosure; or

Whether the claim contains a complaint of victimisation only; or

Whether the claim should be amended to include a claim for public interest disclosure.

REASONS

The claimant presented a claim to the Office of Tribunals on 9 July 2008. In that claim form at paragraph 8 the claimant describes his claim as victimisation. At paragraph 8.4 the claimant states “victimisation from BLB Board/Jill Dowie HR please see attached section 12 for dates”. In sections 11 and 12 of the form the claimant sets out in some detail that he had outstanding proceedings against the Belfast Education and Library Board (Case Ref 2018/07IT) and that he has been victimised for bringing those proceedings.

The respondent accepts that the claim form discloses a claim for victimisation based on the earlier proceedings. The respondents do not accept however that the claim form discloses a claim for public interest disclosure.

The claimant at this hearing identified the subject of the disclosure as being his allegation that letters were composed by the second-named respondent and sent by her to the claimant but were falsely attributed to other authors. He pointed to an example in his claim form of a letter of 5 November 2007 purportedly coming from the Chairman of the Board of Governors of St John the Baptist School. In his claim form the claimant alleges that the letter was dictated and typed from the second-named respondent’s Board HQ computer.

The claimant then provided a copy of a letter written by him to Mr David Cargo on 10 July 2008. Mr Cargo is the Chief Executive of the first-named respondent. This is the letter that the claimant relies on as being the disclosure for which he seeks protection.

The claimant then alleges that he suffered detriment on his return to work on 25 September 2008 and continued to suffer detriment thereafter, as a result of making the protected disclosure.

Mr Law, on behalf of the respondents, submitted that the claimant’s complaint did not outline any protected disclosure. The contents of his complaint relate to victimisation only. The respondents had received clarity today in relation to the claimant’s assertions. It was clear that the disclosure in the letter of 10 July 2008 post-dated the drafting and submission of the claim. Mr Law submitted that therefore it could not be contained within the claim form. Mr Law submitted further that the respondents would strenuously deny any wrongdoing by the second-named respondent and did not at this stage concede that any disclosure made by the claimant or any of the actions attributed to the second-named respondent would in any event fall within the legal definition of a protected disclosure.

The law

Article 67A of the Employment Rights (Northern Ireland) Order 1996 (ERO) states:

“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 of the Articles 67C to 67H”.

8. Article 67B sets out the nature of the information which can constitute a disclosure qualifying for protection.

Article 67C sets out:

“(1) A qualifying disclosure is made in accordance with this article if the worker makes a disclosure in good faith –

(a) To his employer, or

(b) where the worker reasonably believes that the relevant failure relates solely or mainly to -

(i) the conduct of a person other than his employer, or

(ii) any other matter for which a person other than his employer, has legal responsibility, to that other person.

A worker who, in accordance with a procedure produced by him as authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this part as making the qualifying disclosure to his employer”.

By Article 70B of the same order a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

By Article 71 of ERO a complaint may be presented to an industrial tribunal that the claimant has been subjected to a detriment. Such a complaint must be made 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 is part of a series of similar acts or failures, the last of them, or within such further period as a tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

Discretion to amend

The tribunal has the power to amend the claim under Rule 10(2)(a) of the Industrial Tribunals Rules of Procedure 2005. In exercising this power I have broad discretion and should seek to do justice between the parties having regard to the circumstances of the case. In the case of Selkent Bus Company v Moore [1996] IRLR 661 Mr Justice Mummery stated that the discretion to grant leave should be exercised “in a manner which satisfied the requirements of relevance, reason, justice and fairness, inherent in all judicial discretions”.

Mummery J went on to set out some general guidance when considering applications to amend:

“(4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively but the following are certainly relevant:

(a) The nature of the amendment. Applications to amend are many different kinds, ranging on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which changed the basis of the existing claim. The tribunal has to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time, and if so, whether the time limit should be extended under the applicable statutory provisions …”.

Tribunal’s conclusions

Issue 1

Whether the claim form contains a free standing complaint of public interest disclosure.

It is clear that the claimant’s claim form provides no express reference to public interest disclosure. The claimant seeks to have the tribunal interpret or re-label facts already pleaded. However it is clear that the disclosure upon which the claimant relies did not take place until after the claim was presented to the Office of the Industrial Tribunals and the detriment which the claimant alleges flowed from that disclosure did not occur until, at the earliest, the 25 September 2008 over two months after the lodging of the claim.

I am satisfied therefore that the claimant’s application does not include a claim for public interest disclosure.

Issue 2

Whether the claim contains a complaint of victimisation only.

The claimant in his submissions to the tribunal confirmed that no other claims were contained within his claim form apart from the complaint of victimisation and the disputed claim for public interest disclosure. In light of this submission, and the finding I have made in Issue 1, I am satisfied that the claimant’s claim contains a complaint of victimisation only.

Issue 3

Whether the claim should be amended to include a claim for public interest disclosure

In considering the submissions made in relation to whether the claim should be amended it appeared that under the terms of the Employment (Northern Ireland) Order 2003 and the provisions in particular of Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, the normal time limit for presenting the claimant’s complaint may be extended by three months, providing the claimant has made a written grievance within the normal time limit. I explained to the claimant, with the consent of Mr Law, the basic essentials required in a written grievance. The claimant has asserted to the tribunal and the respondents that such a grievance was made. Mr Law was not in a position to confirm or deny if such a grievance had been made.

One of the factors that is appropriate for me to consider in an application for an amendment is the application of time limits. It would appear that the claimant is still in time to make a new claim for public interest disclosure.

After some further consideration, the parties agreed that the appropriate way forward was to adjourn consideration of the third issue to allow the claimant to make any appropriate application to the tribunal by way of a new claim. I therefore adjourn consideration of the third issue to allow the claimant to consider his position.

Chairman:

Date and place of hearing: 14 January 2009, Belfast

Date decision recorded in register and issued to parties: