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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCallion v Creagh Concrete Products Limit... [2009] NIIT 4648_09IT (11 December 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/4648_09IT.html
Cite as: [2009] NIIT 4648_9IT, [2009] NIIT 4648_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 4648/09
CLAIMANT: Sinead McCallion
RESPONDENT: Creagh Concrete Products Limited
DECISION ON A PRE HEARING REVIEW
The decision of the Chairman sitting alone is that the claimant’s originating claim may be construed as including an equal pay claim and accordingly the claimant’s application for leave to amend the claim form is granted.
Constitution of Tribunal:
Chairman Sitting Alone: Ms Julie Knight
Appearances:
The claimant was represented by Ms Suzanne Bradley, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.
The respondent was represented by Mr Ian Carroll, Employers’ Engineering Federation NI.
Issue to be determined
1. “Should the claimant be granted leave to amend her claim form to include a complaint of equal pay? Alternatively should the claim form be construed as already including an equal pay claim?”
Facts
2. The claimant’s employment with the respondent terminated in February 2009 and she lodged an originating claim form electronically with the Office of the Tribunals on 30 March 2009. At paragraph 7.1 of the claim form she ticked the boxes to indicate that she wished to make complaints of sex discrimination, unfair dismissal and breach of contract. She did not tick the “sex discrimination - equal pay” box. Subsequently the claimant’s former representative wrote to the Tribunal office on 1 July 2009 stating that: “we would like to indicate that the complaint of Discrimination – Equal Pay should also be added at this stage as we believe this was overlooked during the initial application. We would be grateful if this omission could be amended.” The respondent lodged a response on 2 June 2009 denying the claimant’s claims.
3. Ms Bradley BL submitted that details at Paragraph 7.4 of the claim form could be construed as already containing a complaint of equal pay, which simply had not been labelled as such. The Chairman allowed Mr Carroll’s request for time to take instructions from the respondent. He then indicated his agreement that the claim form could be construed as containing an equal pay claim and that he consented to the insertion of the following words after the third paragraph in Paragraph 7.4 of the claim form:
“The work which I undertook was like work or work of equal value to that of the detailers in the drawing office. A term of my contract was less favourable than the terms of the detailers’ contracts in that I was not permitted to earn overtime for additional hours worked but was paid a bonus payment twice yearly whereas the detailers were permitted to earn overtime. I believe that this constitutes less favourable treatment contrary to the Equal Pay Act (NI) 1970.”
4. Mr Carroll indicated that the respondent was willing to amend its response accordingly. However he raised an issue as to whether the claimant had complied with the statutory grievance procedures in relation to the equal pay claim. Ms Bradley BL indicated that she was not in a position to deal with this matter today.
Conclusion
5. Having considered the agreed bundle of documents and the submissions of Ms Bradley BL and Mr Carroll, I am satisfied that the originating claim form in its present form does include an equal pay complaint, and that the claimant simply omitted to tick the box which gives the equal pay complaint a label. As such this case simply requires a re-labelling of facts already pleaded. However I am further satisfied that the agreed amendment to the claim form should be allowed as it simply further clarifies the complaint already made and I give leave to the claimant to amend her claim form as per the agreed wording. In reaching these conclusions I take into account that the parties are in agreement that the originating claim could be construed as containing a complaint of equal pay and further agreed to the wording of amendment. I am satisfied that no injustice or hardship is caused to the respondent in allowing the amendment, whereas it is obvious in the circumstances that injustice would be caused to the claimant in refusing it. I give leave to the respondent to lodge an amended response within 28 days in which the respondent is at liberty to raise the issue of whether the claimant has complied with the statutory grievance procedures.
6. I therefore decline to make any ruling on whether the claimant has complied with the statutory grievance procedures as I do not consider that the issue falls within the remit of this pre-hearing review. If raised in the amended response, consideration will be given as to how to proceed with this issue in due course.
Chairman:
Date and Place of Hearing: 12 November 2009, Belfast.
Date decision issued to the Parties: