Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1520/08

CLAIMANT: Grainne Magee

RESPONDENT: Workforce Training Services Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that leave is given to amend the claim to include;

"The claimant contends that her dismissal was unfair contrary to Article 131 of the Employment Rights (NI) Order 1996 and the provisions of Regulations 20(1)(a) and (2) of the Maternity and Parental Leave etc Regulations (Northern Ireland) 1999."

Constitution of Tribunal:

Chairman: Mr N Kelly

Appearances:

The claimant was represented by Mr N Gillam of Donnelly & Kinder Solicitors

The respondent was represented by Mr C White, BL, instructed by Michael Flanagan Solicitors

THE ISSUE TO BE DETERMINED

(1) This was a Pre-Hearing Review, before a Chairman sitting alone under Rule 18 (2) (a) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, to determine the following preliminary issues;

(i) Whether the claimants claim form contains a claim that the respondent failed to let her return to work to the same job or another suitable job on return from her maternity leave contrary to Regulation 18 or Regulation 10 of the Maternity and Parental Regulations (Northern Ireland) 1999.

(ii) If not whether the claimants claim form should be amended to include that claim.

(2) No witnesses were called by the claimant or by the respondent.

(3) The following facts were not in dispute;

(i) the claimant commenced employment with the respondent on 4 April 2005. That contract of employment was extended to the 3 October 2008.

(ii) she was employed as a childcare tutor/assessor delivering training programmes.

(iii) she commenced maternity leave on 5 November 2007.

(iv) she applied for a new post of Childcare assessor on 16 June 2008 and was interviewed on 19 June 2008. She was notified by letter dated 30 June 2008 that she was unsuccessful in this application.

(v) her maternity leave ended on either 1 August 2008 or 4 August 2008.

(vi) when her maternity leave ended she did not physically return to work but took annual leave up to 9 September 2008.

(vii) when her period of annual leave ended on that date she went on sick leave, again without physically returning to work.

(viii) her employment was terminated on 3 October 2008 and the reason given was redundancy.

(4) The claimant submitted a claim form on the 21 October 2008. She named Donnelly & Kinder Solicitors as her representative and confirmed that she was a member of the TGWU section of Unite.

(5) In paragraph 7.1 of that claim form, she described the complaint she wished the tribunal to consider as;

Discrimination/sex, unfair dismissal, breach of contract and other.

(6) In paragraph 7.2 of the claim form she identified the date on which, or the latest date on which, discrimination occurred as the 3 October 2008 i.e. the date on which her employment was terminated.

(7) In paragraph 7.4(14) the claimant stated ;

The claimant believes that the reason that she was not successful in her application and was therefore made redundant on 3 October 2008 was the fact that she was on maternity leave. She believes that if she had not been on maternity leave 2 childcare assessor positions, which were advertised internally, would have been offered to herself and Kim Ford. She believes that she had been discriminated against on grounds of her sex and maternity leave contrary to Sex Discrimination Order 1976 as amended and the Employment Equality (Sex Discrimination) Regulations 1995.

(8) In paragraph 7.4 (15) the claimant stated;

The claimant further contends that she has been unfairly selected for redundancy and seeks relief under the Employment Rights (Northern Ireland) Order 1996.

(9) The claimant also raised a complaint of an unlawful deduction from wages and breach of contract in relation to maternity pay.

(10) On 6 March 2009 in response to a Request for Additional Information, the claimant stated;

"Further the claimant contends that: her selection for redundancy was automatically unfair. She was entitled to return to the same job or another job which is both suitable and appropriate on return from maternity leave"

(11) On 13 March 2009, a Case Management Discussion was held at which both parties were represented. The Record of Proceedings records the legal issues (where relevant to this Pre-Hearing Review) as including;

"whether the decision to make the claimant redundant was automatically unfair contrary to Article 131 of the Employment Rights Order 1996?"

The record went on to say;

"Mr White and Miss Smyth indicated that there was a further matter upon which there was disagreement as to whether it had been properly pleaded in the claimant's claim. That issue was whether the claimant was discriminated against on grounds of her sex in the respondent's failure to permit the claimant to return to work to the same job or another suitable and appropriate job upon return from her maternity leave. Miss Smyth has confirmed that she is going to consider the claimant's position and will write to the respondent to indicate whether the claimant contends that this is contained within her claim form or whether an amendment application is required."

(12) By a letter dated 1 June 2009, the claimant's solicitors sought leave under Rule 10(2)(q) to amend the claim form to include;

The claimant contends that the respondent failed to permit her to return to work to the same job or another suitable and appropriate job on return from her maternity leave. The Claimant therefore contends that the Respondent is in breach of Regulation 18 of Maternity and Parental etc Regulations (Northern Ireland) 1999 as amended. Alternatively the claimant contends that the Respondent is in breach of Regulation 10 of said Regulations in failing to offer alternative employment rather than redundancy.

(13) On 8 June 2009 the respondent's solicitor objected to the proposed amendment on the basis that the original claim form did not disclose any complaint under the 1999 Regulations, that to amend the claim in that respect now would be to add another element to that claim, and that there was no good reason why time should be extended or that an amendment should be allowed in these circumstances. The respondent further submitted that the claimant cannot extend or otherwise amend her claim by means of Replies to a Request for Additional Information.

(14) A further Case Management Discussion was held on 16 June 2009 at which the issues recorded above were listed for determination at this Pre-Hearing Review.

RELEVANT LAW

(15) Rule 10 (2) (q) gives a Chairman power to permit the amendment of a claim.

(16) Regulation 10 of the Maternity and Parental Leave etc Regulations (Northern Ireland) 1999 (the regulations) states:

(1) this regulation applies where, during an employees ordinary or additional maternity period it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.

(2) Where there is a suitable available vacancy the employee is entitled to be offered (before the end of her employment under the existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract).

(3) The new contract of employment must be such that -

(a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and

(b) it's provisions as to the capacity and place in which she is to be employed and as to the other terms and conditions of her employment are not substantially less favourable to her than if she continued to be employed under the previous contract

(17) Regulation 18 (2) of the Regulations provides;

(2) an employee who takes additional maternity leave, or parental leave for a period of more than 4 weeks, is entitled to return from leave to the job in which she was employed before her absence, or, if it was not reasonably practicable for the employer to remit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.

(18) Regulation 18 (4) provides;

(3) paragraphs (2) and (3) do not apply where Regulation 10 applies.

(19) Regulation 20 of the Regulations provides that a dismissal shall be automatically unfair in certain circumstances. It states (where relevant):

(1) an employee who is dismissed is entitled under Article 131 of the 1996 Order to be regarded for the purposes of XI of the 1996 Order as unfairly dismissed if;

(a) the reason or principal reason for the dismissal is of a kind specified in paragraph (3), or

(b) the reason or principal reason is that the employee is redundant and Regulation 10 has not been complied with.

(3) the kinds of reason referred to in paragraphs (1) and (2) are connected with-

(a) the pregnancy of the employee;

(b) the fact that the employee has given birth to a child;

(c) the application of relevant requirement or a relevant recommendation as defined by Article 98 (2) of the 1996 Order

(d) the fact that she took, sought to take or availed herself of the benefits of ordinary maternity leave;

(e) the fact she took or sought to take -

(i) additional maternity leave

(ii) parental leave, or

(iii) time off under Article 85 of the 1996 Order

(4) Paragraphs (1) (b) and (3) (b) only apply where the dismissal ends the employees ordinary or additional maternity leave period.

(20) Article 70C of the 1996 Order provides:

(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason

(2) A prescribed reason is one which is presribed by regulations made by the Department and which relates to-

(a) pregnancy, childbirth or maternity

(b) ordinary, compulsory or additional maternity leave

(ba) ordinary or additional adoption leave

(c) parental leave

(ca) paternity leave or

(d) time off under Article 85A

Article 71 (1) provides:

(1) An employee may present a complaint to an Industrial Tribunal that he has been subjected to a detriment in contravention of – Article 70C

CONTENTIONS OF THE PARTIES

(21) CLAIMANTS CONTENTIONS

Mr Gillam on behalf of the claimant initially submitted that the proposed amendment was relevant only to the claim of unfair dismissal. As that argument was tested, he developed his position to argue that the proposed amendment also related to the claim of sex discrimination. The claim form already disclosed all the essential elements of a claim under Regulation 10 or Regulation 18 i.e. the fact that the claimant was on maternity leave, a redundancy situation existed; a suitable vacancy was a practicable option for the employer and was not offered to the claimant. It was not a requirement for the claimant in industrial tribunal proceedings to provide or specify the precise legislative basis on which the claim was founded. All that is required are the details of each claim. The claimant had already pleaded unfair dismissal and sex discrimination in relation to the termination of her employment and her selection for redundancy. The references to Regulations 10 and 18 were simply further particulars of the claim already pleaded. Mr Gillam initially relied on Regulation 10 and Regulation 20 (1) (b). I suggested that Regulation 10 could only apply where the claimant had been made redundant during her maternity leave and referred to Regulation 20 (4). I gave both parties leave to return to this point by written submission before 11 July 2009.

Mr Gillam further developed his argument at the Pre-hearing Review to rely on Regulation 20 (1) (a) and (b) and/or Regulation 18. He argued that the decision to make the claimant redundant had been made before the effective date of termination on 3 October 2008 and before the end of maternity leave. That enabled the claimant to rely on Regulation 10 and Regulation 20 (1) (a).

He submitted that, if the first preliminary issue were answered in the negative, the proposed amendment was a new head of claim arising out of a factual situation which had already been pleaded i.e. the decision of the respondent not to offer the claimant suitable alternative employment while on maternity leave. If an extension of time were required, he submitted that there had been no undue delay. Unlike the situation in Selkent Bus Co Ltd v Moore [1996] IRLR 661, the addition of an allegation of automatically unfair dismissal was not for an entirely new reason. The issue of maternity and redundancy selection have already been pleaded. He argued that a refusal of the amendment would deprive the claimant of statutory protection afforded to a disadvantaged group i.e. pregnant workers and would seriously prejudice her position. An amendment however would not appreciably add to the respondent's costs since the timetable for witness statements would not require revision and since the relevant factual basis for such a claim was already part of the existing claim for unfair dismissal and sex discrimination.

As indicated above, during the hearing on 3July, I gave leave to both parties to exchange and submit written submissions by Friday 10 July. The claimant's written submission (undated) is annexed to this decision. In that submission, the proposed amendment in relation to Regulation 10 and Regulation 19 was withdrawn. It is worth noting that the proposed amendment in relation to Regulations 10 and 19 was first raised during the Case Management Discussion on 13 March 2009, confirmed in correspondence dated 1 June 2009 and maintained during a Case Management Discussion on 16 June 2009 and further maintained during the Pre-hearing Review.

The claimant, in the written submission, seeks leave for a new amendment which refers to Article 131 of the 1996 Order and Regulation 20 (1)(a) and (2) of the Regulations.

(22) CONTENTIONS OF THE RESPONDENT

Mr White argued that a claim under Regulation 10 was not viable. He referred to Regulation 20 (4) and submitted Regulation 10 could only apply if the claimant had been made redundant during her maternity leave. This was clearly not the case. Regulation 18 was not linked to an unfair dismissal claim under Regulation 20 and was not related to redundancy. The claim form did not disclose the" triggering condition" for Regulation 10 i.e. that a dismissal occurred during maternity leave. It did not contain the "triggering condition" for Regulation 18 i.e. that the claimant had not been allowed to return to her previous job on her return from maternity leave. She had returned to her previous job, albeit on annual leave and subsequently sick leave. He argued that the answer to the first issue must be in the negative.

He further submitted that regulations 10 or 18, if relevant, should have been pleaded on the claim form. The claimant had been professionally advised at all stages of her claim. Regulation 18 did not refer to a redundancy and was an entirely different type of claim which the respondent would be required to meet. It was, as in Selkent, a new type of claim. The claim for sex discrimination would involve a comparative exercise. A claim under Regulation 18 would be different; it would focus on the individual claimant. The respondent is a small organisation. It would be exposed to additional legal costs and to additional expenditure of management time in meeting a new head of claim.

The respondent provided a written submission by letter dated 10 July 2009 and a copy of that letter is annexed to this decision. It notes the withdrawal of the proposed amendment in relation to Regulations 10 and 18 and "nether consents nor objects" to the new proposed amendment which refers to Article 131 and to Regulation 20.

DECISION

(23) In Selkent Bus Company Ltd v Moore [1996] IRLR 661, EAT held that;

In deciding whether to exercise its discretion to grant leave for amendment of an originating application, 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. Relevant circumstances include:

(a) the nature of the amendment, i.e. whether the amendment sought is a minor matter such as the correction of clerical and typing errors, the addition of factual details to existing allegations or the addition or substitution of other labels for facts already pleaded to, or, on the other hand, whether it is a substantial alteration making entirely new factual allegations which change the basis of the existing claim.

(b) the applicability of statutory 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.

(c) The timing and manner of the application. Although the tribunal rules do not lay down any time limit for the making of amendments, and an application should not be refused solely because there has been a delay in making it, it is relevant to consider why the application was not made earlier. An application for amendment made close to the hearing date usually calls for an explanation as to why it is being made then and not earlier, particularly where the new facts alleged must have been within the knowledge of the applicant at the time the originating application was presented.

(24) Where the facts pleaded on the claim form are sufficient to identify the basis of the claim put forward in a proposed amendment, tribunals have been encouraged to adopt a flexible approach in granting amendments that change the nature of the relief sought. For example in Golding v Southfields Community College EAT 0395/06 the claimant originally claimed simple unfair dismissal but disclosed in her claim form an allegation that she had been asked by her principal to "massage the figures" for pupil absences and that after she had objected to this practice she had been bullied and intimidated. The claimant subsequently applied for leave to amend her claim to include a claim for automatically unfair dismissal for making a protected disclosure. The EAT allowed the amendment. The claim form had identified the essential basis of the claim; i.e. that the claimant had suffered dismissal for reason for protected disclosure. It was simply a case of re-labelling the claim and not one of substituting an entirely new claim.

(25) This Pre-hearing Review generated a great deal of sound and fury, signifying, in the final analysis, precisely nothing. However, since there is an application for costs, I have set out my reasoning in more detail than perhaps would be normal given that the original application for an amendment was withdrawn ( albeit after the hearing of the application).

(26) Regulation 10 and Regulation 20 provide that where an employee is made redundant while on ordinary or additional maternity leave, that employee is entitled to be offered suitable alternative work, in preference to other employees. If this is not done, it will be an automatic unfair dismissal. This is an absolute right; she should be given priority over other redundant employees. This is a separate and distinct right over and above the ordinary right not to be unfairly selected for a redundancy and not to be discriminated against on grounds of sex.

The first preliminary issue must be answered in the negative. That claim first surfaced in the Replies to the Request for Additional Information dated 6 March 2009 which arguably paraphrased the wording of the Regulations. While I, of course, accept that the claimant is not required to specify the statutory underpinning of any claim which she wishes to bring to the tribunal, a claim of automatic unfair dismissal under regulations 10 and 20 is, a separate and distinct claim which should, had it been an arguable claim, have been pleaded in some form. This was not done.

(27) It appears from the undisputed facts from this case and from the belated withdrawal of the proposed amendment, that a claim under Regulation 10 would have been wholly unfounded. Such a claim could only, in my view, have been made if the claimant were made redundant during maternity leave. This regulation has no application to a case where a claimant is made redundant some time after her return from maternity leave and alleges that that redundancy is in some way linked to her maternity leave. The proposed amendment in relation to Regulation 10 was wholly misconceived and, on the undisputed facts of the case, should have been recognized as such at a much earlier stage.

(28) Regulation 18 (2) provides that an employee who takes additional maternity leave is entitled to return from that leave to the job in which she was employed before her maternity leave absence, or if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances. The remedy in this respect is provided by Regulation 19 and by Articles 70C and 71(1) of the 1996 Order. As Mr Gillam points out in the written submission, Regulation 19(4) excludes cases where the detriment amounts to a dismissal.

The proposed amendment in relation to Regulation 18 was therefore also misconceived and should not have necessitated discussion in two CMD's, one PHR and a written submission.

(29) Given the withdrawal of the proposed amendment in relation to Regulations 10 and 18, two issues remain. Firstly, the respondent, in its written submission of 10 July 2009 seeks costs. Secondly the claimant in her undated written submission following the Pre-hearing Review seeks leave to amend the claim to include:

"The claimant contends that her dismissal was unfair contrary to Article 131 of the Employment Rights (NI) Order and the provisions of Regulations 20 (1) (a) and (2) of the Maternity and Parental Leave Regulations 1998 (as amended)."

(30) I am not going to determine the application for costs. Enough time has been expended on this Pre-hearing Review and the issue of costs can be left to the end of the substantive hearing.

(31) The new proposed amendment refers to a claim of automatic unfair dismissal in the circumstances prescribed by the Regulations for the purpose of that Article. Those circumstances, in material part, are either that the reason or principal reason for the dismissal was a reason specified in Regulation 20(3), or that the reason or principal reason for the dismissal was redundancy and the claimant was selected for redundancy, where a comparable employee was not selected, and the reason or principal reason for that selection was a reason specified in Regulation 20(3).

Firstly, I note that the respondent neither consents to the proposed amendment. This remarkably ambivalent attitude is of little assistance to the tribunal which is entitled to expect parties which are legally represented to either consent or to object to any proposed amendment. Secondly the issue of automatic unfair dismissal under Article 131 was listed by the tribunal in the CMD on 13 March 2009 as an issue for determination. The fact that the record of that CMD refers to a "further matter upon which there was disagreement" suggests that the parties had agreed at that stage that the claim of automatic unfair dismissal was an issue which was properly before the tribunal. Thirdly, this is not an amendment which, as in Selkent, relates to facts or allegations which have not already been pleaded. In the present case, the claim form alleges both unfair dismissal and sex discrimination. It links her selection for redundancy with her maternity leave. It refers to a colleague who, it alleges, was redeployed and not selected for redundancy. The proposed amendment amounts to a relabelling exercise. It would provide a specific statutory basis for a claim which has already been made. Issues of time limitation therefore do not arise. The timing and manner of the application leave much to be desired but in the circumstances of this case I do not regard that as a crucial issue. I am satisfied that the proposed amendment would cause no hardship to the respondent. The nature of the claim will not alter and the respondent will not face any additional expense. I therefore give leave for the amendment.

Chairman:

Date and place of hearing: 3 July 2009, Belfast

Date decision recorded in register and issued to parties: