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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Logan v Northern Ireland Institute for... [2010] NIIT 6113_09IT (29 April 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/6113_09IT.html
Cite as: [2010] NIIT 6113_09IT, [2010] NIIT 6113_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 6113/09
CLAIMANT: Amanda Logan
RESPONDENTS: 1. Northern Ireland Institute for the Disabled
2. Lorna Simms
3. Vi Long (Care Services, Assistant Director)
4. Paul Orr (Support Worker)
5. April Smyth (Line Manager)
6. Tony Gregg (Assistant Director of Corporate Services)
DECISION ON A PRE HEARING REVIEW
The decision of the tribunal is that:-
(1) The claimant’s claim of unfair dismissal is dismissed as the tribunal has no jurisdiction to consider the claim.
(2) The claimant is not granted leave to amend her claim form to include claims relating to Trade Union membership or Activities and a Protected Disclosure.
(3) The claimant’s claim of age discrimination is in time.
Constitution of Tribunal:
Chairman (sitting alone): Mr S A Crothers
Appearances:
The claimant was present and represented herself.
The respondents were represented by Mr P Broom, Solicitor of Wilson Nesbitt Solicitors.
Issues
1. The issues before the tribunal were agreed by the parties at a Case Management Discussion held on 19 March 2010 as follows:-
(1) Whether the claimant’s claim for unfair dismissal was brought within the statutory time limit and, if not, was it not reasonably practicable for the complaint to be presented within the time limit and was the claim presented within such further period as the tribunal considers reasonable.
(2) Whether the claimant’s claim for age discrimination was brought within the statutory time limits and, if not, whether it is just and equitable in all the circumstances of the case to extend the time for acceptance of the claim.
(3) Whether the claimant’s claim should be amended, as set out in the claimant’s letter of 3 March 2010.
Sources of Evidence
2. The tribunal heard evidence from the claimant and was referred to relevant documentation.
The Facts
3. Having considered the evidence in so far as same was relevant to the issues before it, the tribunal made the following findings of fact:-
(i) The claimant was employed by the first named respondent from 3 December 2007 until the effective date of termination of her employment on 28 November 2008. Her letter of dismissal dated 21 November 2008 clearly states that she is dismissed with one week’s notice and that her last day of employment with the first named respondent would be Friday 28 November 2008.
(ii) The claimant was also working for North Down Borough Council and Positive Futures, and was undertaking a course at University of Jordanstown at the same time as her employment with the first named respondent.
(iii) Correspondence from the claimant’s General Practitioner, Dr Moffett, dated 14 April 2010 states as follows:-
“I can confirm that Amanda attended various doctors in this practice during the period between November 2008 and November 2009. She was certified as being unfit for work on account of work related stress.”
The claimant directed the tribunal to a further medical report from the Employment and Support Allowance Social Security Agency referring to stress which, according to that report, began in July/August 2008.
(iv) The claimant was at all times material for the purposes of this hearing a member of a trade union and had access to trade union advice and representation both before and after her effective date of termination of employment. Although the claimant could not attend a disciplinary hearing on 19 November 2008 for medical reasons, she did attend an appeal hearing on 20 January 2009 together with her trade union representative, Mr Ferguson. She entered a further appeal from that appeal hearing as she objected to Vi Long who sat on the appeal as she had suspended the claimant in February 2008. A further hearing was held on 23 March 2009. Again the claimant was present together with her trade union representative. The claimant did not recommence her work with Positive Futures or North Down Borough Council until November 2009. She attempted to progress with her university course but was unable to attend the University on certain days due to work related stress. She maintained that the work related stress related to the period of her employment with the first named respondent.
(v) The claimant obtained advice from the Equality Commission for Northern Ireland prior to signing her claim form on 29 May 2009, which was presented to the Office of the Industrial Tribunals on 1 June 2009. Thereafter, and pursuant to further advice from the Equality Commission, she forwarded a letter of grievance dated 12 June 2009 in relation to alleged discrimination against her on her dismissal contrary to the Employment Equality (Age) Regulations 2006.
(vi) In her claim to the tribunal the claimant raised complaints of age discrimination together with unfair and constructive dismissal. In relation to her age discrimination complaint her claim form states as follows:-
“Numerous occasions verbally in my appeals procedure and in their documentation was referred to as immature. This was written in my dismissal letter NIID and management failed to uphold their procedures and in effect they detailed it in one of their points of dismissal. Intimidating atmosphere by management and one member of staff.”
The claimant’s case was that there was a continuing act of age discrimination from the commencement of her employment with the first named respondent in December 2007 until she was diagnosed with work related stress on 5 October 2008. She complained that her dismissal also constituted an act of age discrimination. The claimant did not send a grievance in writing in relation to age discrimination to the first named respondent prior to the effective date of termination of her employment.
(vii) Initially the claimant’s claim of unfair dismissal was rejected by the tribunal. The claimant sought a review of that decision. The decision of the tribunal issued on 26 October 2009 was to accept the claim of unfair dismissal. However in the decision the tribunal states, inter alia:-
“9. It seems that there may be an issue in these proceedings as to whether or not the dismissal of the claimant occurred because she had made a “protected disclosure” within the meaning of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) or because she made use, proposed to make use, of trade union services at an appropriate time ….
15. My decision in relation to the proper application of the service qualification period, in the context of the acceptance procedure is, as I have explained to the claimant, merely a recognition that, on the basis of the current state of the information, I cannot be clear that the claimant does not meet any relevant service qualification (for the purpose of pursuing her unfair dismissal claim). My decision under this acceptance procedure review does not preclude the employer from raising, at some future stage of the proceedings, the question of whether the claimant actually met any relevant service qualification requirement.”
(viii) The claimant then sought to articulate her proposed amendments in correspondence to the respondents’ solicitors dated 3 March 2010 under the headings of “trade union activity” and “whistle blowing”.
The claimant referred to minutes of the disciplinary meeting held on 21 November 2008 which refer to:-
“Soliciting staff to join a union as well as support you in building a case against NIID – at least 2 staff has highlighted to NIID that you have tried to co-erce them into the issues that you and Paul Orr have.”
(ix) The tribunal finds it useful to quote an extract from the letter of dismissal dated 21 November 2008 as follows:-
“I confirm that the meeting took place as per my letters of 13 and 19 November, in which I outlined the main matters of concern relating to your performance and conduct were:
· Distracting other members of staff by disruptive behaviour, i.e. by soliciting staff with the view to [building] a case against NIID staff and NIID.
· Failure to adhere to NIID company procedures e.g. sick absence reporting procedure not adhered to on 5 November 2008. Line Manager not informed of incapacity for shift on 5 November.
· Breach of trust and confidence resulting from failings in duty of fidelity.
NIID summarises the effect of this behaviour as causing unnecessary concern to other staff resulting in them raising the matter with management and being divisive to work and detracting from the care of NIID Clients.
In addition to these issues other matters of concern were raised which were:
· NIID note that throughout your employment you have displayed an immature attitude in your approach to work issues.
· Apparent inflexibility regarding your rostered hours as a result of outside commitments.
As neither you nor your representative attended the meeting there were no mitigating factors raised in response to these issues raised for NIID to consider.
Therefore NIID concludes that you are dismissed with one weeks notice. Therefore your last day of employment with NIID will be Friday 28 November 2008.”
The Law
4. (i) The provisions in relation to time limits for making a complaint to an industrial
tribunal are set out in Article 145 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”).
(ii) Article 48 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 (“the Regulations”), state as follows:-
“48.-(1) An industrial tribunal shall not consider a complaint under Regulation 41 (Jurisdiction of Industrial Tribunals) unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.
(2) Where the period within which a complaint must be presented in accordance with paragraph (1) is extended by regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, the period within which the complaint must be presented shall be the extended period rather than the period in paragraph (1).”
(iii) In so far as an alleged act of discrimination arises out of a dismissal, the case of Lawrence –v- HM Prison Service (2007) IRLR468 is authority for the proposition that a grievance is not required in such circumstances.
(iv) In relation to amendments a distinction has to be drawn between amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint; 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 amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.
Harvey on Industrial Relations and Employment Law (“Harvey”) states at T(312.04) as follows:-
“It is only in respect of amendments falling into category (iii) – entirely new claims unconnected with the original claim as pleaded – that the time limits will require to be considered. In that situation, the tribunal must consider whether the new claim is in time and, if it is not, whether time should be extended to permit it to be made (Selkent Bus Co Ltd –v- Moore [1996] ICR 836 at 843H). In order to determine whether the amendment amounts to a wholly new claim, as opposed to a change of label, it will be necessary, as a matter of construction, to examine the case as set out in the original application to see if it provides the necessary ‘causative link’ with the proposed amendment (see Housing Corpn –v- Bryant [1999] ICR 123, CA). In that case, the failure of the claimant to make any reference in her unfair dismissal claim to alleged victimisation defeated her subsequent application to amend the originating application to include a victimisation claim under the SDA, s4. According to Buxton LJ, the absence of a causative link in the application was fatal to the proposed amendment, which was ‘effectively an entirely new claim, brought well out of time’. Likewise, in Harvey v Port of Tilbury (London) Ltd (1999) IRLR 693, [1999] ICR 1030, EAT, a claimant who brought an unfair dismissal complaint, alleging unfair redundancy selection, was held not to be able to amend out of time by adding a claim of disability discrimination under the DDA s 8. Again, the basis of the refusal was that the proposed amendment was the addition of an entirely new cause of action unconnected with the original claim.”
Harvey continues at 312.06 as follows:-
“Although the decisions in the above cases seem to suggest that, where an entirely new claim is being advanced by way of amendment, the critical question is whether it is in time and, if not, whether an extension should be granted under the statutory ‘escape clause’ relevant to that claim, other divisions of the EAT have held that, even in the case of an entirely new claim made out of time, there is a residual discretion to allow the amendment to be made on the basis of the hardship/injustice criteria mentioned in Selkent, and in British Newspaper Printing Corpn (North) Ltd v Kelly [1989] IRLR222, CA (see para [314]), rather than on the statutory basis. Thus in Lehman Brothers Ltd v Smith (EAT/486/05, 13 October 2005), Judge Peter Clark upheld a tribunal decision allowing such an amendment to be made on this ground even though the relevant statutory criterion for granting an extension of time was reasonable practicability. And in Transport and General Workers Union v Safeway Stores Ltd (EAT/92/07, 6 June 2007), Underhill J allowed a new out-of-time claim under the consultation provisions of TULRA and TUPE to be made by way of amendment, and in doing so applied the hardship/injustice test, rather than reasonable practicability, which again was the statutory basis for extending time. Both of these decisions relied on Selkent and Kelly, where Lord Donaldson MR endorsed the seven-point procedure he set out in Cocking v Sandhurst, below, as authority for the proposition that the hardship/injustice test takes precedence over the relevant statutory test. According to Underhill J in the Safeway case, ‘the position on the authorities is that an employment tribunal has a discretion in any case to allow an amendment which introduces a new claim out of time’ (para 7), though he did add: ‘No doubt the greater the difference between the factual and legal issues raised by the new claim and by the old the less likely it is that it will be permitted, but that will be discretionary consideration and not a rule of law’ (para 13).”
Submissions
5. The tribunal heard submissions from the respondents’ solicitor, Mr Broom. In relation to the unfair dismissal claim, he urged the tribunal to find that the claimant did not have one year’s continuous employment and therefore the tribunal did not have jurisdiction to hear the matter. In the alternative he relied upon an analysis of Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, (“Regulation 15”) (extension of time limits), to contend that any extension under that regulation would end on 31 May 2009. Further, and in the alternative, he argued that the evidence showed that the claimant was in a position to attend meetings with a trade union representative in January and March 2009. It followed that she had access to trade union advice and representation. She had also obtained advice from the Equality Commission for Northern Ireland. In his submission it was therefore reasonably practicable for her to have presented her claim to the tribunal in time. In relation to the age discrimination complaint, Mr Broom urged the tribunal to consider as one of the circumstances the fact that the claim was misconceived as it referred to immaturity. He also contended that it was out of time under Regulation 15 and that being so, it would not be just and equitable to extend time. He referred to the Employment Appeal Tribunal cases of Bissett –v- Martins and Castlehill Housing Association Ltd, and Martins –v- Bissett (UK EATs 0022/06/RN and UKEATs/0023/06RN) to contend that Regulation 15 did not apply in the case of a claim against fellow employees. He also urged the tribunal to reject the amendment applications as they were new claims and it would not be just and equitable to extend time. He also submitted that the proposed amendments were misconceived.
The claimant, in her brief submission, urged the tribunal to find in her favour on all of the issues before it.
Conclusions
6. Having considered the evidence together with the submissions and applied the principles of law to the findings of fact, the tribunal concludes as follows:-
(i) The claimant does not have 52 weeks continuous employment for the purposes of bringing a tribunal claim before the tribunal. She received one week’s notice prior to the effective date of termination of her employment on 29 November 2008. In light of this, the tribunal considers it unnecessary to give further consideration to Article 145 of the Order or Regulation 15. The unfair dismissal claim is therefore dismissed.
(ii) The claimant conceded that prior to the effective date of termination she had not raised a grievance in relation to the allegations of age discrimination. However, in so far as these allegations relate to the alleged unfair dismissal, they are in time under Regulation 15 as the three month extension expires on 1 June 2009, and not 31 May 2009 as contended by the respondent. Whether or not there is any substance in the claimant’s claim will be for another tribunal to decide.
(iii) The tribunal is satisfied that the proposed amendments constitute new claims and that, based on the evidence and the principles of law referred to above, it would not be just and equitable to extend time to allow the amendments. In the alternative it is satisfied that the amendments should not be allowed on the balance of justice and hardship ground.
Chairman:
Date and place of hearing: 16 April 2010, Belfast
Date decision recorded in register and issued to parties: