Industrial Tribunals Northern Ireland Decisions

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Cite as: [2009] NIIT 128_9IT, [2009] NIIT 128_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 374/08

1591/08

128/09

CLAIMANT: Edward Francies Clarke

RESPONDENT: Newry & Mourne District Council

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(i) The claimant’s claims did not include a claim that the claimant had been unlawfully discriminated against on the grounds of political opinion, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998.

(ii) The tribunal refuses the claimant’s application to grant leave to amend the claimant’s claims to include a claim of unlawful discrimination on the grounds of political opinion, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998.

(iii) The tribunal refuses the application of the respondent for an Order for Costs to be made against the claimant.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant was represented by Mr D Rafferty, of Belfast Unemployed Resource Centre.

The respondent was represented by Mr P O’Kane, Solicitor, of McShane & Company, Solicitors.

Reasons

1.1 The claimant brought a series of claims in the industrial tribunal against the respondent, that he had been subjected to detriment related to his trade union activities, pursuant to Article 73 of the Employment Rights (Northern Ireland) Order 1996 (‘ERO’). The claimant’s claims were the subject of a Consolidation Order made on 21 May 2009.

1.2 These claims have been case-managed at a series of Case Management Discussions and are presently listed to be heard by the tribunal, at a substantive hearing on the merits, to commence on 1 February 2010.

1.3 At a Case Management Discussion on 27 August 2009, as set out in the Record of Proceedings dated 3 September 2009, Mr Rafferty, as representative of the claimant:-

“ … indicated that he wished to consider making a claim under the Fair Employment and Treatment (Northern Ireland) Order 1998 for unlawful discrimination on the grounds of political opinion. He accepted that, to date, no such a claim had been made and that if any such claim was to be made he would either have to bring new proceedings and/or seek to amend the present proceedings … .”

1.4 Mr Rafferty subsequently confirmed to the tribunal, by letter dated 7 September 2009, that he wished to make an application for leave to amend the claimant’s claims to include a claim under the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘FETO’) for unlawful discrimination on the grounds of political opinion.

1.5 A pre-hearing review was therefore arranged to consider the following issue:-

“Whether the tribunal should grant leave to the claimant to amend his claims or any of them to include a claim of unlawful discrimination on the grounds of political opinion pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998.”

1.6 At the commencement of the pre-hearing review on 13 October 2009, Mr Rafferty, despite what had been stated at the Case Management Discussion on 27 August 2009, made it clear that he also wished to contend, before the tribunal determined the above issue, as set out in the previous paragraph, that the claimant’s claims already included a claim that he had been unlawfully discriminated against on the grounds of political opinion, pursuant to FETO, and that, if he was correct, it was not therefore necessary for the claimant to make the said application for leave to amend.

Having heard submissions by both representatives, I decided that the tribunal should therefore consider and determine the following issues, as amended:-

“(1) Whether the claimant’s claims included a claim of unlawful discrimination on the grounds of political opinion, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998.

(2) If not, whether the tribunal should grant leave to the claimant to amend his claims to include a claim of unlawful discrimination on the grounds of political opinion, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998.

There was no dispute by the representatives that it was appropriate for me, sitting alone, as a Chairman of the Industrial Tribunals, to consider and determine the above issues. I was satisfied, despite the introduction of the further issue at the commencement of the hearing, as set out above, that the respondent’s representative was able to deal with both issues, without the necessity for any adjournment’ but, in the event, I had to grant Mr Rafferty’s application for an adjournment of the hearing.

As a result of the foregoing, the pre-hearing review required to be heard over a period of two days. It will be necessary to consider this later in this decision, in relation to the respondent’s application for an Order for Costs.

1.7

(a)

The claimant presented his first claim (Case Reference No: 374/08) on 14 February 2008. In the claim form, Mr Rafferty was named as his representative. The claim was on a claim form for use in relation to a claim to the industrial tribunal. In Section 8.1 of the form, where the claimant was asked to tick the box or boxes to indicate the type of discrimination (including victimisation) he was complaining about, the claimant failed to tick the box – ‘political discrimination’.

The form also stated:-

“If you tick … the ‘political discrimination’ box we will regard your complaint as a matter for the Fair Employment Tribunal, which deals with unlawful discrimination on these grounds. If your complaint is about this type of discrimination, you should fill in the separate FET1 form.”

(b) Claimants to the tribunals are now able, if they wish, to make their claims to an Industrial Tribunal and/or the Fair Employment Tribunal on the same form.

The claimant presented his second claim (Case Reference No: 1591/08) to the tribunal on 29 October 2008 and his third claim (Case Reference No: 128/09) to the tribunal on 9 January 2009. In both claims, using the same form, he named Mr Rafferty, on the claim form, as his representative. In particular, in Section 7.1 of each claim form, where the claimant was asked to tick the box to indicate the type of complaint he wished the tribunal to consider, the claimant failed to tick the box ‘discrimination – religious belief/political opinion’. Each form also stated:-

“If you select the religious belief/political opinion box, we will regard your complaint as a matter for the Fair Employment Tribunal, which deals with unlawful discrimination on these grounds.”

1.8 Despite the above differences in wording between the said forms, I do not consider the differences are of any relevance to the determination of the issues, the subject-matter at this hearing. I am further satisfied, having considered the terms of the whole of each claim form, that the claimant did not make a claim of unlawful discrimination on the grounds of political opinion, pursuant to FETO, in any of the said claim forms. Further, despite the opportunity to do so, he did not take the opportunity to tick the relevant box, making it clear that he was seeking to make an alternative claim of unlawful discrimination on the grounds of political opinion, in addition to his claim, as set out in the claim forms, of detriment on the grounds of trade union activities, pursuant to Article 73 of ERO. Indeed, at the Case Management Discussion on 27 August 2009, Mr Rafferty had accepted that, prior to that date, no such alternative claim had been made by the claimant.

1.9 In his submissions at this hearing, Mr Rafferty contended that, since the claimant had brought claims for detriment on grounds related to his trade union activities, pursuant to Article 73 of ERO, then the tribunal should have assumed, from the fact he was making such a claim, he was also making a claim of unlawful discrimination on the grounds of political opinion, pursuant to FETO. In doing so he relied, in particular, on the decision of the Court of Appeal in Northern Ireland in the case of McKay v Northern Ireland Public Service Alliance [1994] NI 103. In that case it was held, inter alia, that discrimination on the grounds of ‘political opinion’ under the fair employment legislation was not unlawful only if the political opinion displayed some connection or correlation between religion and politics in Northern Ireland. Political opinion did not have to be linked with religious belief and, although the fair employment legislation extended only to Northern Ireland, the term political opinion was not confined to the Unionist/Nationalist divide. Thus, in that particular case, it was able to hold that the claimant had been discriminated against by the respondent union in respect of a job application on the grounds that his political opinions were those of the NIPSA-broad left.

1.10 Mr Rafferty therefore contended that the claimant, as a trade union activist, not only suffered detriment on grounds related to his trade union activities pursuant to Article 73 of ERO, he had also suffered similar detriment, having been unlawfully discriminated against on the grounds of his political opinion which related to his ‘trade union views’, as such a trade union activist.

However, firstly, in my judgment, it had to be established whether such a claim had in fact been made by the claimant in his said claim form. A person may wish to bring a claim pursuant to Article 73 of ERO; and the facts of that claim may entitle him, if he wishes, to bring an alternative claim of unlawful discrimination on the grounds of political opinion pursuant to FETO. It cannot be assumed by a tribunal that both claims are made by the claimant without some relevant reference, on the face of the claim form, that both said claims had been or were intended to be brought by the claimant. Preferably, a claimant will have ticked the relevant box provided for in the said claim forms and/or will have made some relevant reference, in the body of the claim form. A person may have, for example, potential claims of unfair dismissal and in the alternative sex discrimination arising out of the facts of a dismissal by an employer. However, it is not for the tribunal, without more, to make any assumptions that both claims are brought by a claimant.

1.11 Although the 2005 Rules of Procedure, which govern the acceptance of claims, whether before the Industrial Tribunal or the Fair Employment Tribunal, are stricter than the previous Rules of Procedure and require a claimant to set out the details of the claim, I am satisfied that the tribunal are entitled to continue to adopt the previously recognised ‘flexible’ approach, when determining the nature of the claims that have been brought by a claimant before the tribunal. (See further Burns International Security Services (UK) Ltd v Butt [1983] ICR 547, Dodd v British Telecom PLC [1988] ICR 166.) In particular, I am satisfied the absence of a tick in the relevant discrimination box is not fatal in itself, provided it can be shown, from matters set out elsewhere in the claim form, considering the claim form as a whole, that a claimant has also made, for example, an alternative claim of unlawful discrimination on the grounds of political opinion.

As was held in the case of Grimmer v KLM Cityhopper (UK) [2005] IRLR 596:-

“ … Accordingly, in determining whether an application to an employment tribunal contains ‘details of the claim’ as required under Rule 4(1), 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 Secretary or a Chairman interpreting ‘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 … .”

1.12 In this particular case, in my judgment, there was nothing contained in the claim form, taken as a whole, from which it could be discerned the claimant wanted to bring a claim of unlawful discrimination on the grounds of political opinion, pursuant to FETO, in addition to his claim of detriment relating to trade union activities, pursuant to Article 73 of ERO. The mere fact that he was entitled to bring such an additional claim, having regard to the interpretation of the meaning of political opinion in FETO, following the McKay case, was not sufficient in itself, without more, to enable me to conclude that the claimant’s claim forms also included a claim of unlawful discrimination on the grounds of political opinion, pursuant to FETO. The claimant had not ticked the relevant box, nor was there anything stated in the body of any of the claim forms from which it could be discerned the claimant had brought such a claim. As seen in the Grimmer case, a mere tick of the relevant box could have been sufficient. However, in the absence of such a tick or any other relevant reference, in the body of the claim forms, I came to the conclusion the claimant had not shown that the claimant’s claim included a claim of unlawful discrimination on the grounds of political opinion, pursuant to FETO.

2.1 Before turning to the second issue to be determined by the tribunal at this pre-hearing review, it is necessary for me to make reference to Article 85 of FETO.

In summary, this Article provides that where a claimant has brought a claim to the industrial tribunal, under the various jurisdictions set out in the said Article (eg unfair dismissal, sex discrimination, race discrimination; but also a claim of unlawful discrimination under FETO, the President and/or the Vice President can direct that those matters which would otherwise fall to be determined by an industrial tribunal can also be heard and determined by the Fair Employment Tribunal. In such circumstances, whenever such an Article 85 Direction is made, the Fair Employment Tribunal has the jurisdiction and may exercise all the powers of an industrial tribunal.

Unfortunately, although many industrial tribunal claims can be the subject of an Article 85 Direction, a claim of detriment on grounds related to trade union membership or activities, pursuant to Article 73 of ERO, cannot be the subject of an Article 85 Direction. Thus, if the amendment sought by the claimant is to be allowed, the industrial tribunal claims of detriment on grounds related to trade union activities, pursuant to Article 73 of ERO, will have to be heard by an industrial tribunal; and the claimant’s claim of unlawful discrimination on the grounds of political opinion, pursuant to FETO, will have to be heard, separately, by a Fair Employment Tribunal. At present, both the Fair Employment Tribunal and the Industrial Tribunal have separate panels of lay members – so each claim would have to be heard at a separate hearing before a different tribunal. This is clearly somewhat unsatisfactory and could lead to conflicting decisions by the different tribunals. The potential for such conflict will remain, in the absence of any legislative change. However, it also has to be recognised that this situation would have arisen, in any event, because of the above provision, if the claimant had, from the outset, presented his claim of detriment related to trade union activities to the industrial tribunal together with an alternative claim of unlawful discrimination on the ground of political opinion to the Fair Employment Tribunal. It will be necessary to refer further to this issue later in this decision.

2.2 A further relevant matter to be considered, assuming the application to amend is granted, is whether the fair employment claim requires to be heard before the industrial tribunal claim.

In the legislation relating to the other grounds of unlawful discrimination, eg sex, race, etc, it is provided that where a complaint is presented to an industrial tribunal (see Article 63(3) of the Sex Discrimination (Northern Ireland) Order 1976 for example), and it appears to the tribunal that the act to which the complaint relates is one in respect of which (as being unlawful discrimination within the meaning of FETO):-

(a) a complaint could be made to the Fair Employment Tribunal under [Part vi of that Order]; or

(b) such a complaint has been made, but the proceedings under that Order have not been disposed of;

the industrial tribunal shall not proceed with the [sex discrimination claim] unless the proceedings which can be taken under FETO in respect of the act have been disposed of.

However, in relation to claims under the Employment Rights (Northern Ireland) Order 1996 and, in particular, the claimant’s claim, pursuant to Article 73 of ERO, there is no equivalent provision to those referred to above, in relation to unlawful discrimination claims. In my experience, the normal practice of the tribunals has been, in circumstances where an Article 85 Direction is not possible, to direct/order that any Fair Employment Tribunal claim is heard and determined before any industrial tribunal claim, although there is no specific legislative provision, as set out above. This practice is consistent with the legislative provisions applicable to the unlawful discrimination claims, as referred to above. Thus, even if leave to amend is granted to the claimant, the tribunal will still require to give directions/orders in relation to whether the Fair Employment Tribunal claim or the Industrial Tribunal claim should first proceed to a substantive hearing. It will be necessary to refer to this issue again later in this decision.

3.1 As I have concluded, as set out above, that the claimant’s claims did not include any claim of unlawful discrimination on the grounds of political opinion pursuant to FETO, it was necessary for me to consider the second issue - namely whether the tribunal should grant the claimant’s application for leave to amend the claims to include a claim of unlawful discrimination on the grounds of political opinion, pursuant to FETO.

In his initial submissions, for the purposes of this application, Mr Rafferty appeared to indicate that his application was of a much wider nature than that set out above; and, in particular, that the proposed amended claim, the subject of the application, included a claim of unlawful discrimination, pursuant to FETO, in relation to the claimant’s representation of Protestant workers. Having taken time to consider his position further, Mr Rafferty then informed me that he was only seeking to amend the claimant’s claim to include a claim of unlawful discrimination on the grounds of political opinion, relating to the claimant’s trade union activities as a trade union activist; and, in this context, he was not seeking, in particular, to rely on any additional factual matters than the claimant had already relied upon, in relation to his said claim for detriment on grounds relating to his trade union activities. In particular, I emphasised to Mr Rafferty, if the application to amend was granted, it would not be an opportunity for the claimant to widen his claim to include claims in relation to the claimant’s representation of Protestant workers. There was no dispute by the representatives that, in summary, the dispute between the claimant and the respondent related to how the respondent had dealt with a number of grievances brought by him.

3.2 In Harvey on Industrial Relations and Employment Law, Volume 5, Section T, Paragraph 311.03, distinction is drawn between:-

“(i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;

(ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim; and

(iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.”

3.3 Although Mr O’Kane was not prepared to concede the issue, he did not strongly dispute Mr Rafferty’s submission that, in light of the foregoing, the claimant’s proposed amendment came within the second category referred to above. On the basis that the claimant’s amendment was restricted in the manner which I have referred to above, and he was therefore no longer seeking to make an amendment of the much wider nature referred to above, I came to the conclusion this proposed amendment should be treated as falling into the second category and should be determined by me accordingly.

A particular consequence of so finding is that, as set out in Harvey, Volume 5, Section T, Paragraph 312.02:-

“ … the proposed amendment will not be subjected to scrutiny in respect of the time-limits, but will be considered under the general principles applicable to amendment, as summarised in Selkent … .”

3.4 In the case of Transport & General Workers Union v Safeway Stores Ltd [2007] UKEAT/0092/07, Underhill J, set out the leading authorities in relation to this issue of amendment and the principles to be followed by tribunals. In summary, it is well-established from the said authorities referred to in that case, in exercising its discretion to grant an amendment, the tribunal is required to take into account all the circumstances and relevant factors and, in particular, that these include the nature of the amendment, the applicability of time-limits, if any, and the timing and manner of the application. But the paramount considerations, as referred to by Mummery J in the well-known case of Selkent Bus Company Ltd v Moore [1996] IRLR 661, are namely:-

“The paramount considerations are the relevant injustice and hardship involved in refusing or granting an amendment.”

(See further Evershed v New Star Asset Management [2009] UKEAT/0249/09 and Enterprise Liverpool Ltd v Jonas & Others [2009] UKEAT/0112/09.)

3.5 As indicated above, I was satisfied that this proposed amendment came within the second category of amendments, as referred to in Harvey on Industrial Relations and Employment Law, as the amended claim was linked to or arose out of the same facts as the original claim. Such an amendment is often described as putting a new ‘label’ on facts already pleaded.

As Underhill J confirmed in Transport & General Workers Union v Safeway Stores Ltd (see Paragraph 13) ‘a mere re-labelling’ is much more likely to be permitted than an amendment which introduces very substantial new areas of legal and factual enquiry.

In this matter, Mr Rafferty has confirmed that he is not seeking, for the purposes of his FETO claim, to rely on any different factual matrix than he intended to rely upon in relation to his ERO claims, which claims already have been the subject of considerable interlocutory notices and replies and case-management to enable the legal and main factual issues to be identified, prior to any substantive hearing on the merits.

Whilst clearly, in relation to the FETO claim, there will be some additional legal and factual issues to be shown by the claimant, arising out of the fact the claimant will require, within that factual matrix, to show he was less favourably treated on the grounds of political opinion, than his relevant comparator, I am not satisfied that the FETO claim will require substantial additional legal and factual enquiry. There may, of course, require to be served by the respondent some additional Notices for Additional Information/Discovery and Inspection, for example, in relation to the claimant’s political opinion, as relied upon by him for the purposes of this claim; but I think that any such interlocutory notices will, in the above circumstances, be of a limited nature.

Insofar as there requires to be any further interlocutory applications, as part of the case-management process for the hearing of any such amended claim, I am satisfied that these should be able to be dealt with within a short period of time. Indeed these should be able to be completed before February 2010, the date when the industrial tribunal claim, pursuant to Article 73 of ERO, is already listed for a substantive hearing, on the merits.

Thus, given that the case-management process for the industrial tribunal claim has been almost completed and that claim is listed for hearing in February 2010, I believe that the FETO claim, if leave for the amendment is granted, could be ready to be listed for the same date; and without a great deal of additional expense and time.

Clearly, in such circumstances, if leave to amend was to be granted, it would have been preferable to have listed both claims together. Unfortunately, as seen above, an Article 85 Direction is not possible; and both claims therefore have to be listed and heard separately before different tribunals. However, the fact that both claims would have to be listed and heard separately by different tribunals is not only unsatisfactory, it clearly will also involve both parties in additional time and expense, which I do not underestimate. However this is something which would always have occurred, because of the lacuna in the legislation, referred to above, if the claimant had brought both his Industrial Tribunal and Fair Employment Tribunal claims, when he initially presented each of his claims to the tribunal.

Mr O’Kane, in seeking to persuade me to refuse the amendment, strongly relied on this additional expense and time, which his clients would be put to when defending the FETO claim at a separate hearing before a different tribunal. However, in the above circumstances, whilst I have considerable sympathy for the respondent, I am not satisfied that the fact that there has to be the two separate hearings, with the additional time and expense, is a determining factor, as contended for by Mr O’Kane, when balancing the relevant injustice and hardship to the parties in refusing or deciding to grant the amendment. I so conclude, in light of the fact that the necessity to have two such hearings is a consequence of the legislative provisions and would always have had to be faced by the respondent, if both claims had been brought by the claimant from the outset.

I do not underestimate that the claimant, in seeking to amend his claim to include a claim of unlawful discrimination on the grounds of political opinion, pursuant to FETO, is making a major amendment and this is not a mere ‘technical’ amendment. Although, I acknowledge the respondent, if the amendment is granted, will be required to defend an additional claim, albeit arising out of the same factual matrix, I was not satisfied the respondent showed he had suffered any other particular specific prejudice arising from the said amendment – subject to issues relating to the statutory grievance procedure, which I shall refer to later in this decision. The respondent is clearly in a position to defend the industrial tribunal claim, pursuant to Article 73 of ERO; and, in my judgment, it is equally able to do so, in relation to the claim of unlawful discrimination on grounds of political opinion pursuant to FETO, in circumstances where the claim arises out of the same or similar factual matrix.

3.6 The timing and manner of the application for leave to amend the claimant’s claims has caused me some concern. As indicated previously, it was not until the Case Management Discussion on 27 August 2009 that Mr Rafferty first raised the issue of the amendment. Mr Rafferty is not legally trained; but he is an experienced representative in these tribunals, and I find it difficult to accept that, until the date of that Case Management Discussion, it apparently did not occur to him the claimant might be able to bring the alternative claim pursuant to FETO. It is all the more surprising since the McKay decision, was given by the Court of Appeal in 1994, and is well-known to those involved in employment law in this jurisdiction.

However, Mr Rafferty frankly admitted, during the course of his submissions, that the error/failure to bring the FETO claim from the outset, or to make this application at an earlier stage, during the various Case Management Discussions which were held for the purposes of the industrial tribunal claim, was his error/failure and not that of the claimant. It is necessary to note that, at all material times, Mr Rafferty has been the representative of the claimant; and, as set out above, was named as representative of the claimant, when each claim form was presented to the tribunal.

In considering the exercise of my discretion, whether to grant or refuse the application for leave to amend, I therefore had to consider whether the error/failure of the claimant’s representative should, in essence, be visited upon the claimant. Albeit in a somewhat different context, although with some similarities, there is authority that, in relation to the issue of extension of time to bring tribunal proceedings on just and equitable grounds, the failure of a legal adviser to enter proceedings in time should not be visited upon the claimant, otherwise the respondent would be in receipt of a windfall (see Chohan v Darby Law Centre [2004] IRLR 685).

Mr Rafferty is clearly not a legal representative, albeit he is an experienced representative in the tribunals and was someone I would have expected, given his experience, to have been aware of the ability of the claimant to make this alternative claim. However, I have concluded, in view of Mr Rafferty’s frank acceptance that the error/failure was his, to refuse the amendment, in such circumstances, would be to visit such error/failure on the claimant and would be particularly unjust on the claimant in the circumstances. In the recent case of Evershed v New Star Asset Management [2009] UKEAT/0249/09, Underhill P (Paragraph 33) stated:-

“It is not the business of the tribunals to punish parties (or their advisers) for their errors. In very many, perhaps most, cases where permission is given to amend a pleading, the party in question could, if he had been sufficiently careful, have got it right first time round.”

3.7 Thus, subject to a further matter, in relation to the statutory grievance procedures, which I shall address in the following paragraphs of this decision, I am satisfied that the greater hardship and injustice, in light of the circumstances referred to above, would be to the claimant if he was not given the opportunity to allow this additional claim under FETO to be determined by a tribunal at a substantive hearing on the merits.

4.1 The claim of unlawful discrimination, pursuant to FETO, on the grounds of political opinion is a claim that is subject to the statutory grievance procedures contained in the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) and in the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’).

Article 20 of the 2003 Order provides:-

“(1) An employee shall not present a complaint to the Fair Employment Tribunal under Article 38 of the Fair Employment and Treatment (Northern Ireland) Order 1998 if –

(a) it concerns a matter in relation to which the requirement in Paragraph 6 or 9 of Schedule 1 applies; and

(b) the requirement has not been complied with.

(5) The Fair Employment Tribunal shall be prevented from considering a complaint presented in breach of Paragraphs (1) (2) (3), but only if –

(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings; or

(c) the tribunal is satisfied that the breach is the result of his employer raising the issue of compliance with those provisions in accordance with Regulations under Article 84 of the Fair Employment and Treatment Order (Procedure Regulations).”

Schedule 1 of the 2003 Order provides:-

“Standard procedure –

Step 1 : Statement of Grievance

6. The employee must set out the grievance in writing and send a statement or a copy of it to the employer.

…

Modified Procedure –

Step 1 : Statement of Grievance

9. The employee must –

(a) set out in writing –

(i) the grievance; and

(ii) the basis for it; and

(b) send a copy or a copy of it to the employer.

… .”

4.2 Regulation 2 of the 2004 Regulations defines grievance, as follows:-

“Grievance means a complaint by an employee about actions which his employer has taken or is contemplating taking in relation to him.”

4.3 If a claimant, whose claim is subject to the statutory grievance procedures, is unable to show he has brought a grievance under the statutory grievance procedures, when he is required to do so, then issues arise under the 2003 Order and 2004 Regulations in relation to whether the tribunal has jurisdiction to hear any such claim.

However, in this context, it is necessary to note that although Article 20 of the 2003 Order, as set out above, provides:-

“ … ‘an employee shall not present a complaint’ … .”

It is not necessarily outwith the jurisdiction of the tribunal to hear it, if the employee has not complied with Paragraph 6 or 9 of Schedule 1 of 2003. This is because of the terms of Article 20(5) of the 2003 Order, which prevents the tribunal from hearing the claim but only in two precise circumstances. The jurisdictional bar therefore operates ‘if and only if’ the two said circumstances set out in Article 20(5)(a) or (b) of the 2003 Order apply (see Paragraph 4.1 above). See further Elias P in the case of South Kent College v Hall [UKEAT/0087/07].

In this matter, pending the outcome of this application for leave to amend, there is not yet presented to the tribunal any claim of unlawful discrimination on the grounds of political opinion, pursuant to FETO. However, Mr O’Kane made it clear that, at all material times, the respondent would be raising the tribunal’s jurisdiction to hear any such claim, if the amendment was granted, because there had been, as he submitted, a failure to raise a grievance in accordance with the statutory grievance procedures.

This raises two further issues. Firstly, did the claimant, at any material time, present a grievance in accordance with the statutory grievance procedures in relation to his proposed amended claim of unlawful discrimination on the grounds of political opinion, pursuant to FETO. Secondly, if so, when a tribunal is considering an amendment application, is the tribunal required to have regard, when exercising its discretion, whether the relevant statutory grievance procedures apply to any such claim, the subject of the amendment and, if so, whether the procedures have been followed.

4.4 There was no dispute between the representatives that the claimant had presented a grievance in accordance with the relevant statutory grievance procedures in relation to his claim of detriment on grounds related to his trade union activities, pursuant to ERO.

In addition, it was not disputed by the representatives, in the course of their submissions to the tribunal, that when making the said grievances for his said IT claims, the claimant had not, in his said grievances, stated anything which made any reference to a claim of unlawful discrimination on the grounds of political opinion; it only referred to his complaint of detriment on grounds relating to his trade union activities. Indeed, this is consistent with the fact that it was not, until the Case Management Discussion on 27 August 2009, that Mr Rafferty, due to his now admitted error/failure, raised any issue of a potential claim of unlawful discrimination on the grounds of political opinion, pursuant to FETO. Further, at that hearing, he acknowledged that, prior to that date, no such claim had previously been made by the claimant; albeit he subsequently, at the commencement of this hearing, contended that the claimant’s claim already included the amended claim (see Paragraph 1.6 of this decision).

4.5 What is a grievance, for the purposes of the statutory procedures, has been the subject of considerable legal authority in Great Britain, following the introduction of the statutory grievance procedures in Great Britain in October 2004 and subsequently in Northern Ireland in April 2005. The statutory grievance procedures introduced in Great Britain, and subsequently in Northern Ireland in April 2005, are in similar terms. To date, there have not been any relevant decisions of the Northern Ireland Court of Appeal in relation to the statutory grievance procedures. In such circumstances, therefore, the decisions of the Employment Appeal Tribunal in Great Britain and/or the Court of Appeal in England and Wales and the Court of Session in Scotland are of considerable persuasive authority; albeit they are not binding on this tribunal. There is no doubt that, in the said legal authorities, the statutory grievance procedures have been the subject of much criticism and, as a consequence, have now been abolished in Great Britain by virtue of the Employment Act 2008, subject to transitional provisions. However, the statutory grievance procedures continue to be applicable in Northern Ireland and therefore are required to be followed. The provisions are complex and were memorably condemned by Underhill P as rebarbative, a gastronomic image reflected in his later judgment in Cambridge and Peterborough Foundation NHS Trust v Crouchman [2009] UKEAT/0108/09 as a ‘pigs breakfast’.

In the case of Canary Wharf Management Ltd v Edebi [2006] IRLR 416, Elias P said:-

“ … it seems to me that the objective of the statute can be fairly met if the employers, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint has been raised. … If the statement cannot in context be read even in a non-technical and unsophisticated way as raising the grievance which is the subject-matter of the tribunal complaint, then the tribunal cannot hear the claim. There is no overriding interest of justice which can be invoked to save it.”

In the case of Ward v University of Essex [UKEAT/0391/07] the Employment Appeal Tribunal held at Paragraph 32:-

“ … the essential characteristic of the grievance letter is that the employer should be put on notice of what the employee is complaining about.”

Further, in the case of Royal Mail Letters & Others v Muhammad [UKEAT/0392/07] the Employment Appeal Tribunal upheld an employer’s appeal that an employee had not complied with Step 1 in relation to a discrimination claim when simply setting out the factual matrix of a complaint : HHJ Pugsley held that:-

“The letter of grievance [must] spell out, though not in formal terms, whether the employee considers he or she has been discriminated against unlawfully and it does not suffice to set out factual complaints which theoretically found such an application.” (Paragraph 18)

In the circumstances, on the basis of the evidence before me, I was not satisfied that the claimant, at any time, has presented any grievance, within the terms of the statutory grievance procedures relating to the claim, which is the subject of this application for amendment - namely of unlawful discrimination on grounds of political opinion, pursuant to FETO. There was no reference to such a claim in the grievances sent by the claimant to the respondent in relation to his ERO claim. The mere fact that the factual matrix might be argued to be sufficient to found such a claim, as well as the claim which the claimant has already brought in the industrial tribunal, is not sufficient, in my judgment, to satisfy the statutory grievance procedures (see Royal Mail Letters and Others). In the absence of any relevant reference to such a claim, pursuant to FETO, I accept the respondent’s submission that it could not have been expected to appreciate that the FETO complaint, the subject-matter of the proposed amendment, was also the subject of a statutory grievance, whenever the claimant raised those grievances relating to detriment on grounds relating to his trade union activities. It is important to note that, as set out in the Canary Wharf Management case, if the statement cannot in context be read even in a non-technical and unsophisticated way as raising the grievance which is the subject-matter of the tribunal complaint then the tribunal cannot [tribunal’s emphasis] hear the claim. In particular, Elias P also emphasised, there is no overriding interest of justice which can be invoked to save it [tribunal’s emphasis]. It is therefore not a matter of discretion, if a grievance, as required, has not been raised with the employer.

4.6 Issues have been raised in some legal commentaries/authorities whether a tribunal, when it is considering an amendment application, is required to have regard, when exercising its discretion to give leave to allow an amendment, to the fact that an issue may arise in relation to whether the relevant statutory procedures apply to any such claim, the subject of amendment and, if so, whether the procedures have been followed.

In Blackstone’s Employment Practice 2009, at Paragraph 3.9, it is stated:-

“The position appears to be different in relation to amending the claim form. It is still not clear whether an amendment which seeks to raise a matter to which the statutory procedure applies will be allowed if the employee has not submitted a Step 1 grievance letter in relation to the matter and allow 28 days for a response. To disallow the amendment would seem to be contrary to the overriding objective to deal with cases in a just and cost-effective manner, but to allow the amendment would enable the employee to circumvent the statutory procedure, and would potentially be open to challenge on the ground that the tribunal has not jurisdiction under Section 32 of the Employment Act 2002 … .”

In Employment Court Practice 2008 at Paragraph 4.125, it was also suggested issues relating to compliance with the statutory grievance procedures must be a further fact to be considered in relation to any application to amend the claim.

4.7 In the recent decision of the Employment Appeal Tribunal in the case of Potter & Others v Northumbria Acute Hospitals NHS Trust & Others [2009] UKEAT/0385/09, Mrs Justice Slade, at Paragraph 121 of her judgment, suggests that compliance with the statutory grievance procedure, in the context of an amendment to an existing claim, may be a relevant consideration in exercising the discretion to amend the claim but is not a bar to such an amendment. In coming to this conclusion, she relied on the judgment of Lady Smith in the case of Highland Council v TGWU [2008] IRLR 272, where at Paragraph 34 she had held:-

“If tribunal proceedings have commenced then it is not a question of considering whether a claim can be presented or not. It has already been presented. There is no question of the pre-existing grievance procedure being ‘invalidated’. What the claimant can do is seek to amend her existing claim, the decision on which the employment tribunal makes in the exercise of its discretion without reference to Section 32(2) which would not come into play in these circumstances. Contrary to what seemed at one point to be apprehended by the claimants, the tribunal would not require to refuse such amendment by reason of the fact that the new comparator(s) had not featured in the original grievance document. That would be but one of the factors that the tribunal could be expected to take into account and if there was good reason for the reference to the new comparator(s) not having been made at that stage then that would, no doubt, weigh in the claimant’s favour. Alternatively, where tribunal proceedings have already commenced, it would be open to the claimant, if so advised, to start afresh in respect of the new comparator, with a fresh grievance and, if the issue is not resolved through the grievance procedures (which should not be assumed to be without prospect of success) with a fresh tribunal complaint.”

The Highland Council case primarily focused on whether, as a matter of jurisdiction, the grievance must specify a comparator, at least by reference to a particular job or job title; and this must not be materially different from the comparator(s) on the claim form. Lady Smith found that, without some specification of comparator in the grievance document, ‘the employer could not be expected to appreciate that a relevant complaint was being made’; and it was not enough to state that an equal pay claim was being made without saying more. Although her decision on this primary issue, before her, has not been followed by the Court of Appeal (see Suffolk Mental Health Partnership NHS Trust v Hurst [2009] ICR 281) and Cannop & Others v Highland Council, sub nom Highland Council v TGWU [2008] IRLR 634, neither case has suggested that her reasoning on the above issue of amendment, at Paragraph 34, was impugned. Similarly, Elias P, when deciding the appeal in Hurst in the Employment Appeal Tribunal [2009] IRLR 12, at Paragraph 43 referred, without dissent, to the judgment of Lady Smith on this issue:-

“43 … It did not, however, necessarily follow that a fresh grievance would have to be raised. Lady Smith accepted that a tribunal might properly allow an amendment to the claim to allow fresh comparators to be identified, and the fact that no grievance had been specifically raised with respect to them would be but one factor in the tribunal’s exercise of discretion as to whether to allow the amendment or not. Alternatively, the fresh proceedings could be commenced following the lodging of a fresh grievance.”

4.8 In the recent decision of Underhill P in Evershed v New Star Asset Management [UKEAT/0249/09], he has also approved of the reasoning of Lady Smith in Highland Council. He considered her decision on this issue had not bee impugned. He considered her reasoning to be consistent with the position as regards amendment to include claims which would be out of time if brought in fresh proceedings. In doing so, he again made reference to his previous judgment on amendment issues in the case of Transport & General Workers Union v Safeway Stores Ltd [UKEAT/0092/07]. However, in accepting that the failure to comply with the statutory grievance procedures by presenting a relevant grievance was not fatal and merely a bar he suggested that there required to be considered, in each case, the question of what weight ought to be given to any failure there may have been to lodge a grievance. In the particular facts of the Evershed v New Star Asset Management case he found that ‘not much’ weight required to be given to the said failure. He went on to suggest, on the particular facts of that case, that he could see that the claimant’s failure to lodge a grievance might be a weighty factor against amendment where its pursuit might have altered the sequence of events. But he found that it did not – the claimant had already lodged a grievance, setting out his complaints up to a particular date, and the requirement (if there really was one) to lodge a further grievance, updating matters to include the events of later that day, was, in his judgment, essentially technical.

4.9 The facts, in the present case, are very different. What is sought to be complained of by the complainant, in his proposed amendment, is to raise a very different complaint to the complaint already made, albeit based on the same factual matrix. It is not, in my judgment, a mere matter of technicality. The amendment sought is a major amendment and one which, by reason of the claimant’s failure to make a relevant grievance, the respondent was given no opportunity to deal with at the relevant time, before the presentation of the claimant’s claims to the tribunal. In the case of Cannop v Highland Council [2008] IRLR 634, at Paragraph 25, the Court of Session, while it accepted that the provisions should not be read or applied so as to render access to the tribunal ‘impossible or excessively difficult’; went on to state:-

“We accept that contention, recognising, however, that Parliament has legitimately (in the interest of grievances being resolved without the need to access the tribunal) set out a mandatory preliminary procedure to be complied with before such access is sought. That procedure must be given proper effect, but the provisions should not be construed any more widely than is necessary strictly to give an effect to the intention of the statute (City of Bradford MDC v Pratt per Elias J at Paragraph 37)… .”

4.10 As I have indicated previously, although the decision of the Employment Appeal Tribunal, in relation to the proper interpretation of the statutory grievance procedures, are not binding on this tribunal, they are highly persuasive in the absence of any decision of the Court of Appeal in Northern Ireland. Indeed, as the legislation in relation to the statutory procedures is in similar terms, the decisions of the Employment Appeal Tribunal in relation to such matters have generally been followed by the tribunals in this jurisdiction.

In these circumstances, I considered it appropriate to follow the dicta set out in the Highland case, and approved in the Hurst and Potter cases and most recently the Evershed case, as set out above – namely that the failure by an employee to present a statutory grievance to an employer, as required, was not an absolute bar but rather a factor to be considered, when exercising discretion, in relation to an application to amend a claim.

4.11 Unlike the Evershed case, I am satisfied the proposed amendment in the present case is a major amendment, which has been sought at a very late stage. Further, the failure to lodge the statutory grievance was not a mere technicality as in Evershed. As the decision in Canary Wharf makes clear, where there is such a failure “there is no overriding interests of justice, which can be invoked to save it”. In Cannop, there is an emphasis on the ‘mandatory preliminary procedure’ to be complied with before such access is sought. In such circumstances, I consider a tribunal has to be very slow, in the exercise of its discretion, to allow a claimant to circumvent the statutory procedure, by way of an amendment of a claim, which he would not have been able to do, if he had brought a fresh claim.

The major purpose of the statutory grievance procedure is to give the parties an opportunity to resolve a grievance, without the need to bring tribunal proceedings. In this case, the respondent had no prior notice whatsoever of any FETO claim, prior to the Case Management Discussion on 27 August 2009. It was denied the opportunity, if it had wished to do so, to resolve it. Given the purpose of the procedure, the failure to give the respondent that opportunity, before any tribunal proceedings cannot be easily ignored. It might be argued that the likelihood of resolution was small, given the respondent’s resistance to the proposed FETO claim, as expressed by the respondent’s representative in the course of this hearing. Thus, even if such a grievance had been properly made, the claimant might still have brought tribunal proceedings, because he did not consider the grievance had been resolved. But, of course, the claimant having brought a grievance, might equally have decided not to bring tribunal proceedings, in light of the respondent’s response to the grievance. The opportunity to make use of the statutory grievance procedures, before any tribunal proceedings were commenced, was therefore lost to the respondent. In these circumstances, I consider the respondent is able to show actual prejudice. Such prejudice is something more than, as seen previously, the necessity to defend the alternative FETO claim.

In light of the foregoing, I have therefore concluded the failure of the claimant to comply with the statutory grievance procedure, by failing to lodge a grievance, as required, is a weighty factor, in this particular case, to be taken into account, in the exercise of my discretion, when balancing the paramount considerations referred to by Mummery J in Selkent. Taking that factor into account, I have decided that the respondent would suffer the greater injustice and hardship, if the application to amend was granted.

4.12 I therefore refuse the claimant’s application to grant leave to amend the claimant’s claim to include a claim of unlawful discrimination on the grounds of political opinion, pursuant to FETO.

Even if I was wrong to follow the decisions of the Employment Appeal Tribunal, my decision would have been the same. The failure to lodge the grievance, as required, would therefore have been an absolute bar and the application to amend would have had to be refused.

4.13 The claimant’s claim of detriment related to this trade union activities, pursuant to Article 73 of ERO will therefore now proceed to hearing, as previously ordered on 1 February 2010 – 12 February 2010 – though subject to a further Case Management Discussion to ensure the issues have been properly finalised and all interlocutory applications have been concluded. The date of the further Case Management Discussion will be notified to the parties in due course.

5.1 At the hearing on 13 October 2009, after it had been decided the tribunal would determine the two issues set out in Paragraph 1.6 of this decision, Mr Rafferty informed the tribunal he was not in a position, on the first day of the hearing, to give his submissions in relation to the second issue and could only give his submissions on the first issue. I found this very surprising and unsatisfactory, given that the second issue had been at all material times, prior to the commencement of the hearing on 13 October 2009, the issue, which was to be the subject-matter of the pre-hearing review. Mr Rafferty confirmed he was still seeking to rely on both issues. Given Mr Rafferty’s experience as a representative, in the circumstances, I could find no good reason for his failure to be able to give his submissions in relation to the second issue. However, equally, I concluded that, in the interests of justice, I had no alternative, after hearing his submissions on the first issue, to adjourn the hearing to 30 October 2009. This would enable the tribunal to hear Mr Rafferty’s submissions on the second issue, together with Mr O’Kane’s submissions on both issues. Mr O’Kane objected to the adjournment; but, when it was granted, he reserved the right to make an application for costs arising out of the said adjournment.

5.2 At the conclusion of the hearing, Mr O’Kane made an application for an Order for Costs pursuant to the Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, arising out of the necessity for the said adjournment. In essence, Mr O’Kane contended this matter could have been completed at one day’s hearing, not the two days which were ultimately required. He sought £300 plus Value Added Tax for the costs incurred by the respondent arising out of the additional day’s hearing. He relied upon Rule 40(1) and in the alternative Rule 40(2)(3) of the Rules of Procedure. Rule 40 states:-

“(1) A tribunal or chairman may make a Costs Order when on the application of a party it or he has postponed the day or time fixed for an adjournment of a hearing under Rule 26 or a pre-hearing review. The Costs Order may be against, or as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.

(2) A tribunal shall consider making a Costs Order against a paying party where, in the opinion of the tribunal or chairman (as the case may be) any of the circumstances in Paragraph (3) apply. Having so considered, the tribunal or chairman may make a Costs order against the paying party if it or he considers it appropriate to do so.

(3) The circumstances referred to in Paragraph (2) are where the party has in bringing the proceedings, or he or his representative has in the proceedings acted … or otherwise unreasonably … .”

5.3 I am satisfied that the claimant’s representative Mr Rafferty, conducted the proceedings unreasonably when he was not prepared, at the first day’s hearing on 13 October 2009, to give his submissions in relation to the second issue, which was always the subject-matter of the pre-hearing review. He was unable to give a proper reason for his failure to do so. However, even if he conducted the proceedings unreasonably, the tribunal still has to decide whether, in the exercise of its discretion to make an Order for Costs. Under Rule 40(1), the tribunal does not have to be satisfied there was any unreasonable conduct; but it still has to decide whether, in the exercise of its discretion, an Order for Costs should be made. In tribunal proceedings, under the Rules of Procedure, costs do not follow the event. Indeed, it has been suggested in various authorities, it is unusual/exceptional for a Costs Order to be made (see Salinas v Bear Stearns International [UKEAT/0594/09], McPherson v BNP Paribas [2004] IRLR 558). However, I am also very aware of the recent guidance of the Court of Appeal in the case of Peifer v Castlederg High School and Western Education & Library Board [2008] NICA 49, that tribunals should use their costs powers, were appropriate.

5.4 However, I have concluded, not without some hesitation, that I should not, in the exercise of my discretion, make an Order for Costs. In doing so I took into account, in particular, that, on the first day of hearing, Mr Rafferty made his submissions on the first issue. It was not therefore a completely ‘wasted day’. Although Mr O’Kane was prepared to deal with both issues on the first day of hearing, I consider, by reason of the adjournment, he was able to have further time to prepare his detailed submissions on that issue. That further time I consider was of benefit to the tribunal when determining the issues in this matter.

Chairman:

Date and place of hearing: 13 October 2009; and

30 October 2009, Belfast

Date decision recorded in register and issued to parties: