Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/5193_09IT.html
Cite as: [2009] NIIT 5193_09IT, [2009] NIIT 5193_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 5193/09

CLAIMANT: Angela McCauley

RESPONDENT: Pace Telecom Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that leave is refused to amend the claim to include:

“The claimant contends that her dismissal was unfair contrary to Article 134A of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).”

Constitution of Tribunal:

Chairman (sitting alone): Mr N Kelly

Appearances:

The claimant was represented by Mr A Elesinnla, BL, instructed by Diamond Heron Solicitors.

The respondent was represented by Mr M Potter, BL, instructed by O’Reilly Stewart Solicitors.

ISSUES 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 Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (the 2005 Rules) to determine whether the claim should be amended to include a claim that the claimant was unfairly dismissed on the ground that she had made protected disclosures to the respondent about the respondent’s commercial activities.

RELEVANT FACTS

2. The claimant worked for the respondent within Northern Ireland as a telecommunications engineer.

3. The respondent is based in Wrexham but also operates within Northern Ireland. It sells and installs commercial telephone systems.

4. There is a dispute about the date on which the claimant’s employment ended, but for the purposes of this review, I am assuming that it ended on 31 January 2009.

5. The claimant first lodged a claim in the Employment Tribunal in Shrewsbury on 20 April 2009. That claim alleged unfair selection and unfair procedure in relation to redundancy, sex discrimination, and age discrimination. At paragraph 9.1 of the GB claim form under the heading “Other Complaints”, the claimant recorded a range of matters that she was putting forward as reasons for her selection for redundancy. She included the following;

“I also didn’t approve of they (sic) company’s selling methods and I made this clear to them. Regarding the signing of leases and installation of equipment. They have very low if not no customer services and as an engineer I tried to change this to benefit the customers.”

6. That particular alleged reason for selection for redundancy was not mentioned at all in the claimant’s grievance letter of 9 March 2009. It complained of unfair selection for redundancy generally and specifically alleged that the selection of the claimant was motivated by her sex, by her intention to have children, by the respondent’s belief that the claimant was not trained in Panasonic systems, by another employer asking for a reference and by the relatively high costs of her leased car.

7. The respondent lodged a response in Shrewsbury and stated that it “denies all claims made by the claimant regarding the dismissal and the alleged discrimination under any of the tribunal’s jurisdictions.”

8. The claimant then lodged a claim in Belfast on 22 April 2009. She alleged unfair dismissal in relation to redundancy selection and procedure, sex discrimination, and age discrimination. There was no mention of protected disclosures, or any disclosures, in that claim form. That form was prepared with the assistance of a solicitor.

9. The respondent lodged a response in Belfast on 22 June 2009. It attached the response to the Shrewsbury tribunal claim and stated;

“We repeat the denial of each of the claims made by the claimant as set out in the attached ET3 response to claim number 2900676/2009.”

10. At a Case Management Discussion on 14 October 2009 in Belfast, this Pre-hearing Review was listed to determine;

“The claimant’s application to amend her claim to include a complaint of detriment and dismissal for having made a protected disclosure.”

11. On 2 November 2009, the claimant’s solicitor provided written details of the allegation in relation to protected disclosures to the tribunal and to the respondent’s solicitors. In summary, the claimant alleges that she complained on several occasions that unfair commercial practices were adopted by the respondent and alleged that these complaints had been made by her to one or more of three managers, Brian Nixon, Robert Burrow, and Chris Featherstone.

RELEVANT LAW

12. Rule 10(2)(q) of the 2005 Rules gives a Chairman power to permit the amendment of a claim.

13. The “overriding objective” of the 2005 Rules is to enable tribunals to deal with a case justly and that includes;

“Ensuring that it is dealt with expeditiously and fairly”

In Cobbold v London Borough of Greenwich [9 August 1999] Court of Appeal, Peter Gibson LJ stated:

“The overriding objective is that the court should deal with cases justly. That includes, so far as practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party or parties caused by the amendment can be compensated for in costs, and the public interest in the efficient administration of justice is not significantly harmed. I cannot agree with the judge when he said that there should be no prejudice to Greenwich in not being allowed to make the amendments they are seeking. There is always prejudice when a party is not allowed to put forward his real case, provided that that is properly arguable.”

14. In Anyanwu and Another v South Bank Student Union [2001] UK HL 14, Lord Steyn stated that, as a general principle, cases involving discrimination should generally be heard as a matter of public interest.

15. Mr Justice Mummery stated in Selkent Bus Company Ltd v Moore [1996] ICR 836 that;

“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.

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 of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, or, on the other hand, the making of entirely new factual allegations which change 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 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. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments can be made at any time-before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made; for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.

16. Harvey states at paragraph 311.01 of part T;

“[Before making that decision however,] the tribunal should take into account all the circumstances and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.”

At paragraph 311.3 it states;

“A distinction maybe drawn between;

(1) Amendments which are merely designed to alter the basis of an existing claim but without purporting to raise a new distinct head of complaint.

(2) Amendments which add or subject a new cause of action which is linked to or rises out of the same facts as the original claim.

(3) Amendments which add or subject the wholly new claim or cause of action which is not connected to the original claim at all.”

17. In Golding v Southfields Community College EAT 0395/06, the only complaint made in the claimant’s claim form was of unfair dismissal. However she had stated in paragraph 5.1 of the form that she had been asked by the head teacher of the school where she worked to “massage the figures” for pupil absences and that she had made objections known to this and had then been bullied and intimidated. The claimant subsequently applied for leave to amend her claim to include a claim of automatically unfair dismissal for making a protected disclosure. That amendment was refused by the tribunal on the basis that it was a substantive amendment to the original claim in respect of which time-limits would have to be applied. The EAT reversed that decision on the basis that the claim form had identified the essential basis of the claim that the claimant had suffered dismissal by reason of a protected disclosure. Applying the principles established in Selkent, the EAT concluded that the application to amend merely involved the addition of factual details and another label to facts already pleaded. It did not, in the EAT’s opinion, involve an entirely new factual allegation changing the basis of the existing claim.

CONTENTIONS OF THE PARTIES

18. In opening the hearing, I indicated that the issues at that point appeared to me to be;

(I) Whether this amendment was simply a relabeling exercise or a claim which had not already been pleaded.

(II) If the latter, whether the time-limit for lodging the claim should be extended.

(III) Applying the balancing exercise as set out in Selkent.

20. Mr Potter, for the respondent, stated that there was already an unfair dismissal claim and sought to concede that time limitation was not an issue in relation to this amendment. The only issue was the balancing exercise as set out in Selkent.

ARGUMENT FOR THE CLAIMANT

19. Mr Elesinnla unsurprisingly, did not argue against Mr Potter’s concession and agreed that there was an extant claim of unfair dismissal. The amendment was simply adding further particulars to that existing claim. The evidential burden for proving the reason for dismissal rested on the respondent. The claimant was entitled to put forward, in evidence or argument, alternative hypotheses in this regard. There was no prejudice to the respondent in this amendment. The claimant would raise the issue of protected disclosures in any event in relation to the reason for dismissal in terms of unfairness and to rebut the respondent’s evidence that the real reason for the dismissal was redundancy. The respondent would therefore have to deal with the evidence in relation to protected disclosures in any event.

20. There was always a public interest issue in having claims of unlawful discrimination ventilated.

21. The claimant had already highlighted the issue of protected disclosures in the original claim which had been lodged in Shrewsbury. The respondent had been fully aware of that claim and indeed the respondent’s Belfast solicitors had simply adopted the terms of the response, which had been lodged in Shrewsbury, in its entirety. The reference in that response which stated “without prejudice to the generality of the above, the respondents specifically denies all claims made by the claimant regarding the dismissal and alleged unlawful discrimination under any of the tribunal’s jurisdictions and that it is liable to compensate the claimant at all” must be taken to refer, inter alia, to the allegation in relation to protected disclosures.

22. The instructions in Belfast were taken late in the day. The claim form had been lodged on the same day instructions were taken and the primary concern at that point was to get the claim lodged within the time-limit.

ARGUMENT FOR THE RESPONDENT

23. Mr Potter stated that the matters raised by the claimant in relation to protected disclosures arose out of alleged incidents when the claimant had been employed by a different company, Belcom, and that the claimant had subsequently transferred under TUPE to the present respondent. There was no public policy argument for allowing the amendment in these circumstances.

24. The claimant had delayed in seeking to add this ground to her claim. She had always been aware of the potential for this claim. There has been no satisfactory explanation for not including this allegation in the original claim form lodged in Belfast. The claimant, if the amendment were not allowed, would still have a claim for unfair dismissal which she could test before the tribunal and prejudice would therefore be limited. The costs and length of the hearing would be substantially increased if the amendment were allowed. He stated that the costs would be increased “by a factor of three”.

25. Mr Potter also indicated that the respondent might have difficulty in locating the necessary witnesses to defend these allegations. He was not, however, able to positively state that any of the three managers named in connection with the allegations, which were the subject of the amendment, were unavailable for any reason.

DECISION

26. I note the concession made by Mr Potter in which he indicated that time-limits were not an issue in this case. However time limitation is a matter that goes to the jurisdiction of the tribunal and it is therefore not a matter that can be determined solely by a concession made by one or other party.

27. The arguments put forward by the claimant are essentially that the proposed amendment falls within the first or second category set out in paragraph 311.3 of Harvey. Harvey makes it clear in respect of the second category of cases, that tribunals “have always shown a willingness to permit a claimant to amend to allege a different type of claim from the one pleaded if this can be justified by the facts set out in the original claim. It is usually described as putting a new label on facts already pleaded”.

28. In paragraph 312.02 Harvey states “the position is, therefore, that if the new claim arises out of facts that have already been pleaded in relation to the original claim, the proposed amendment will not be subjected to scrutiny in respect of the time-limit but be considered under the general principles applicable to amendments as summarised in Selkent.”

29. In Selkent, the claimant sought to expand an original claim form for dismissal to include a claim of automatic unfair dismissal on trade union grounds. The EAT did not permit the amendment on four grounds, one of which was that the amendment pleaded facts, which had not previously been pleaded, in support of a new positive case of automatic unfair dismissal for trade union reasons. The proposed amendment in that case was made some 14 days before the date of hearing and no explanation was provided to the tribunal as to why these facts, which must have been within the claimant’s knowledge, were not alleged in the original complaint and the claimant would in any event still have been entitled to pursue a complaint of ordinary unfair dismissal.

30. No facts have been pleaded in the original application lodged in Belfast which could support the claim of automatically unfair dismissal on the ground of protected disclosures. In that sense, this case is quite unlike the case of Golding (above) where details of the alleged protected disclosures were specified in the claim form. In the present case, the details of the alleged protected disclosures were included in the claim form lodged in Shrewsbury and it is clear that the respondent was aware at the commencement of this litigation, and the respondent’s solicitors were aware at the commencement of this litigation, that the allegation had been made. However I have to look at the claim as it is lodged in Belfast and that claim contains no relevant facts upon which a claim of automatic unfair dismissal on the basis of protected disclosures could be grounded. I therefore regard this amendment as a proposed new claim and not simply as a relabeling exercise. The issue of time-limits therefore becomes crucial. I have heard no evidence and no submission in relation to the “reasonably practicable” test set out in the 1996 Order. In reality, given the time which has elapsed between the lodging of the original claim and the application for the proposed amendment, I suspect that no such submission could reasonably have been made.

31. Even if this were not a new head of claim and if this were simply a relabeling exercise, I would not have granted the amendment having completed the balancing exercise as set out in Selkent. There was a substantial delay over several months from the lodging of the original claim in Belfast and the raising of this issue at the CMD in October 2009. No satisfactory explanation has been put forward for that delay. While I accept that there may have been an initial rush to lodge proceedings in Belfast, when there was doubt as to the validity of the Shrewsbury claim, that initial haste cannot explain the subsequent delay up to October 2009. Turning to the paramount consideration i.e. the balancing of the injustice and prejudice of allowing or not allowing the amendment, I have concluded that the respondent would suffer substantial prejudice if the amendment were allowed. While it may well be that all the witnesses are available, it seems clear that the investigation of these issues and the provision of additional evidence will add substantially to the cost of these proceedings. While I think Mr Potter was somewhat overstating the extent of that prejudice when he indicated that this would increase the length of the hearing by a factor of three, it is likely that this would need at least three additional witnesses and it will have to cover a range of issues over a substantial time frame. The prejudice or hardship caused to the claimant by refusing the amendment is substantially mitigated by the fact that she will still be able to pursue a claim of unfair dismissal in any event, together with claims of sex discrimination and age discrimination. If the claimant chooses to introduce evidence relating to the alleged protected disclosures in an attempt to establish that the reason for the dismissal was not, as stated by the respondent, redundancy and that the dismissal was unfair, it would be open to the respondent to call rebuttal evidence if it chooses to do so, but equally, the respondent may choose to rely simply on the fact that Article 134(A) of the 1996 Order requires that the protected disclosures should be the principal reason for the dismissal. If the claimant really thought that the disclosures were the principal reason for the dismissal, I would have expected this issue to have featured more prominently in the claim form lodged in Shrewsbury and also to have been dealt with in some detail in the claim form which was lodged in Belfast. The claim form in Shrewsbury only mentions it, almost as an afterthought, after claims of unfair selection for redundancy, sex discrimination and age discrimination were clearly set out. The claim form lodged in Belfast does not, as indicated above, mention it at all. It features nowhere in the grievance letter. If this allegation were anything other than a make weight, it would have been a matter dealt with thoroughly when the claimant gave instructions to her Belfast solicitors or, if some misunderstanding had arisen in the rush to lodge the claim in time, very shortly after that point.

32. Even if I am wrong in determining that the proposed amendment amounts to a new claim, which is out of time and for which no proper grounds have been made out for an extension of time, the balance of hardship/injustice to my mind points firmly towards refusing the amendment. The amendment is therefore refused.

Chairman:

Date and place of hearing: 20 November 2009, Belfast.

Date decision recorded in register and issued to parties: