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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McRoberts v Keith Buckley~ T/A Module Road... [2010] NIIT 01702_10IT (01 March 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01702_10IT.html
Cite as: [2010] NIIT 1702_10IT, [2010] NIIT 01702_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1702/10
CLAIMANT: Matthew McRoberts
RESPONDENT: Keith Buckley, T/A Module Road and Race
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that leave is granted to the claimant to amend his claim to include a claim of constructive unfair dismissal and his claims of sex discrimination and breach of contract are dismissed.
Constitution of Tribunal:
Chairman (sitting alone): Mr Uel A Crothers
Appearances:
The claimant was present and represented himself.
The respondent was represented by Mr B Mulqueen, Barrister-at-Law instructed by Fox and Stewart Solicitors.
Issues
1.
The issues before
the Tribunal as directed at a Case Management Hearing on
25 November 2010 were as follows:-
(i)
Whether the claim
should be amended to include a claim of constructive unfair dismissal.
(ii)
Whether the
Tribunal has jurisdiction to hear a claim of sex discrimination, given the
respondent’s claim that there had been no relevant statutory grievance.
(iii)
Whether the claims
of breach of contract and redundancy payment were made within time and,
therefore, did the Tribunal have jurisdiction to hear those claims?
The
respondent’s representative indicated that there was no longer an issue, for the
purposes of the pre-hearing review, in relation to the redundancy payment
element of issue (iii).
Sources of Evidence
2.
The Tribunal heard
evidence from the claimant was referred to relevant documentation during the
hearing.
The Facts
3. Having considered the evidence insofar as same was relevant to the issues before it, the Tribunal made the following findings of fact:-
(i)
The claimant was
employed by the respondent from September 1999 until the effective date of
termination of his employment on 5 December 2009. During week commencing 15
September 2008 the claimant’s week was reduced to a three day week and later,
in October 2009, to a two day week. In or around this time the claimant
consulted with the Labour Relations Agency. He resigned by correspondence
dated 3 December 2009 stating as follows:-
“It
is with regret that I wish to inform you of my decision to terminate my
employment therefore my final day will be Saturday 5 December 2009.
Yours sincerely
Matthew
McRoberts”
(ii) Subsequently, in or around 27 October 2009, the claimant consulted with a firm of Solicitors. Correspondence, dated 27 October 2009, which was presented to the respondent on 19 November 2009 stated as follows:-
“I, Matthew McRoberts of 36 The Square, Ballyclare, Co Antrim do hereby intend to claim a redundancy payment due to short time working.
I have been kept on short time working to the extent that my wage per week is now calculated at less than half a week’s full pay. I have been in such a position since 9 October 2009”.
(iii) The claimant made further telephone contact with the Labour Relations Agency in about the end of January/beginning of February 2010 by which time he had drafted a claim form to the tribunal. As a result of this consultation the claimant forwarded correspondence to the respondent dated 19 February 2010 which states as follows:-
“19 February 2010
Mr Keith Buckley
Module Road and Race
Unit 3 Windmill Court
ANTRIM
BT41 2TX
Dear Keith
NOTICE OF INTENTION TO CLAIM
Please note that I am claiming redundancy payment as a full time employee for a period of ten years employment.
I will also be claiming loss of earnings for the period I was forced to work three days a week, with only a phone call on Monday and Tuesday night as notification of the commencement of my reduced employment for the first week. Then being notified by a customer, that weekend, that I was to be on a three day week the following week. Then further reduced to a two day working week, while no one else in your employment was affected.
Also during my short time working period you unlawfully reduced my annual leave entitlement. Consequently I shall be claiming monies owed as a result of loss of annual leave entitlement.
Johnny Buckley returned to work after a long period of absence and not long after this my hours were reduced while Johnny was kept on a 7 day working week. During this period Johnny had an accident, which left him in a leg cast. Jemma was then employed to work extra weekdays to help out Johnny during this period. A job, which I was qualified to do and had done so before on a number of occasions satisfactorily. When I asked you about this you advised that she was being paid at a lesser rate than myself. Johnny was also claiming Sickness Benefit while working in the shop during this period.
Despite discussing my grievances with you on a monthly basis, with regards to my reduced working hours, you were reluctant to discuss the foreseeable future and gave little reason as to why the part time employees were also unaffected by any changes in employment, namely Debbie on Thursdays and Fridays and Anne-Marie and Jemma on Saturdays.
You also employed Jeffrey Larson within the shop to do work I was available to do and had previously carried out satisfactorily.
Should this matter proceed to a tribunal I shall inform them of all the above mentioned issues.
Yours sincerely
Matthew McRoberts”
(iv) The tribunal found the claimant to be an unconvincing witness in certain aspects of his evidence. It is satisfied, however, that the foregoing correspondence of 19 February 2010 reflects in general terms, the nature and extent of the issues discussed with the Labour Relations Agency. The claimant was advised to wait 28 days following his grievance for a response from the respondent, before presenting a claim to the tribunal. He understood that he had a period of 6 months to submit a claim to the tribunal. The tribunal is satisfied that the claimant receive a pack of guidance information from the Labour Relations Agency subsequent to his consultation with it, which included references to time limits for presenting claims to the tribunal.
(v) In his claim form presented to the tribunal on 2 July 2010, (which was signed by the claimant on 30 June 2010), the claimant, at paragraph 6.2, ticks the box at “(c)” in relation to constructive dismissal, but omits any reference to a claim of unfair dismissal in paragraph 7.1. It is clear to the tribunal that the claimant did not understand even in general terms, what a claim of unfair dismissal or constructive dismissal was at this time and considered it to be part of the ‘process’ leading to him obtaining a redundancy payment. The record of the Case Management Discussion held on 25 November 2010, states at paragraph 3, as follows:-
“It emerged that the claimant thought that he had a claim of constructive unfair dismissal before the tribunal. It was pointed out to him that he had only ticked the box relating to redundancy payment and that there was nothing anywhere in the form which could support a claim of constructive unfair dismissal, he stated that he had misunderstood the position and thought it was covered by ‘redundancy payment’”.
The claimant also consulted with the Citizens Advice Bureau some time after presenting his claim to the tribunal.
(vi) The claimant further maintained in his evidence that he did not discover the basis for a sex discrimination claim until 2-3 weeks before the end of his employment and gave this as the reason why it had not been mentioned at an earlier stage in terms of a grievance being raised in writing. At paragraph 6.4 of his claim form the claimant asserted that he did not put all or part of his complaint regarding sex discrimination in writing to the respondent on the basis that he “had reasonable grounds to believe that putting my grievance in writing could have resulted in a significant threat to myself”. According to the claimant, the alleged significant threat related to the respondent’s son. The actual wording in regulation 11(3) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, refers to the fact that “the party has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in a significant threat to himself, his property, any other person or the property of any other person”. The claimant, however, uses the word “could” and not “would”.
The Law
4. (1) As Harvey on Industrial Relations and Employment Law (“Harvey”) states at T[311.03] ff:-
“A distinction has to be 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.
[312] Amendments falling within category (i) are not affected by the time limits, as the nature of the original claim remains intact, and all that is sought to be done is change the grounds on which that claim is based.
…
[312.01] So far as category (ii) is concerned, the tribunals and courts 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.
…
[312.02] 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 limits, but will be considered under the general principles applicable to amendments, as summarised in Selkent.
…
[312.04] “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 312.07 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).”
(2) The law in relation to presenting a claim for breach of contract is found in Article 3 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 which reads as follows (insofar as relevant):-
“proceedings may be brought before an Industrial Tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if —
If … (c) the claim arises or is outstanding on the termination of the employee’s employment”.
Article 7 of the Order provides that:-
“An industrial tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented –
(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claims; or
(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated; or
(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable”.
(3) Article 19(1) of the Employment (Northern Ireland) Order 2003 when read with Article 19(7) of the same Order and Regulation 6(1) of the Employment (Northern Ireland) Order 2003 (Dispute Regulation) Regulations (Northern Ireland) 2004 requires the statutory grievance Procedure which is set out in Schedule 1 Part II of the 2003 Order to be used for all complaints set out, not only in Schedule 3, but also Schedule 2 of the 2003 Order. This includes claims under the Sex Discrimination (Northern Ireland) Order 1976.
Submissions
6. The tribunal considered brief oral submissions from the claimant and the respondent’s counsel.
Conclusions
7. 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 is granted leave to amend his claim form to include a claim of constructive unfair dismissal on the basis that the amendment sought which adds or substitutes a new cause of action is one which is linked to, or arises out of the same facts as the original claim.
(ii) The breach of contract claim is dismissed as being out of time as it was reasonably practicable in the sense of being reasonably feasible for the claimant to have presented his claim to the tribunal within the relevant three month period from 5 December 2009. Such a claim does not require compliance with the statutory grievance procedure.
(iii) The claimant’s sex discrimination claim is dismissed as he did not raise a statutory grievance in writing with the respondent and the tribunal is not
satisfied on the evidence and in accordance with the wording of the relevant regulation referred to earlier in this decision, that he had reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in a significant threat to himself.
Chairman:
Date and place of hearing: 11 February 2011, Belfast.
Date decision recorded in register and issued to parties: