Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/01944_10IT.html
Cite as: [2010] NIIT 1944_10IT, [2010] NIIT 01944_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1944/10

CLAIMANT: Dezi Beavers

RESPONDENT: JD Tipler Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant’s application to amend his claim is granted.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Kinney

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr Warnock, Barrister-at-Law, instructed by T D Gibson & Company, Solicitors.

Facts

1. The claimant presented a claim to the tribunal on 12 August 2010 claiming unfair dismissal. The claimant’s employment terminated on 16 August 2010. On 13 November 2010 the claimant wrote to the Secretary of the Tribunals making an application to amend his claim for a claim of breach of contract in that he was not paid his appropriate pay during the notice period. That letter was received by the tribunal on 16 November 2010. At a Case Management Discussion on 30 November 2010 the claimant’s application was listed for hearing on 13 January 2011.

2. The claimant informed the tribunal that at the time he presented his claim he was unaware that he had a further entitlement to pay during the notice period. In the period leading up to the end of his employment he was very stressed and had been off work for 10 weeks with stress. Although the claimant was extremely vague about a time line as to advice, he confirmed that he had received advice from friends, from the Labour Relations Agency and finally from a solicitor. That advice was supplemented by his own researches on the internet. Having spoken to the Labour Relations Agency he telephoned a solicitor in early November. Having further checked on the internet he then made his application to amend his claim. He sought an amendment as he considered that the issues were all part of the same complaint and were in addition to the claims already made. He accepted that this amendment involved a new claim that had not previously been contained in his claim form. He had not included it in the original claim as he had been paid statutory sick pay for the period of his absence during notice and was not aware of his right to any further pay during that period.

3. Mr Warnock, in his submissions, referred the tribunal to Harvey on Industrial Relations and Employment Law, Division P1, Paragraph 311. He accepted that the tribunal had a discretion to grant leave to amend the claim following the principles set out in Selkent Bus Company Ltd v Moore [1996] IRLR 661. The application to amend is to add a new claim which Mr Warnock submitted was not connected to the original claim. He contended that breach of contract was not contained anywhere in the claim form and that it referred to facts not pleaded in the claim form. Mr Warnock conceded that the application to amend was made within the original three month time-limit, in fact on the last day of that period, and that there was no need to lodge a statutory grievance. However, Mr Warnock based his submission on the proposition that there is a fundamental distinction between making a new claim and making an application to amend an existing claim. Mr Warnock submitted that the relevant date in considering an application to amend is not the date on which the claimant makes his request of the tribunal but the date on which the matter is heard by the tribunal. In this case that means that rather than consider the date of the application to amend as 16 November 2010 (a date which is within the primary three month time period) the appropriate date is 13 January 2011. The claimant therefore has not made his application to amend the claim within the primary time-limit and the tribunal must consider the extension of time test in exercising its discretion to consider allowing the amendment. Mr Warnock conceded that had the claimant, on 13 November 2010, presented a new claim rather than seek an amendment of his existing claim and that had been received by 16 November 2010 then the respondent would have no argument as the claim would be properly within time. Mr Warnock further submitted that in considering the extension of time under the guidance of Selkent, the tribunal must also consider the ‘not reasonably practicable’ test for breach of contract claims. As, on his submission, it was reasonably practicable to have brought the claim within the three month period, the claimant’s application must fail. Mr Warnock also referred the tribunal to the case of Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409. He did so for comparative purposes and referred to it by analogy.

4. Mr Warnock submitted that the hardship to the respondent in allowing the amendment is that the respondent would be deprived of its limitation defence. It is a further issue which will have to be litigated. He acknowledged that the claimant would, even if the amendment was not allowed, have the right to bring a breach of contract claim in the High Court. However, he said this was a further hardship to the respondent. The respondent, if the claimant issues proceedings in the High Court, would be potentially able to recover costs if they were unsuccessful on the issue. It would be harder to recover costs in the industrial tribunal.

The tribunal’s conclusions

5. In Selkent, Mummery J pointed out that the judicial discretion is to be exercised “in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions”.

6. The tribunal must have regard to the timing and manner of the application. The fact that the claim is out of time is simply a factor, albeit an important one, in the exercise of a tribunal’s discretion as to whether or not to allow an amendment (Ali v Office of National Statistics [2005] IRLR 2001). The tribunal must also consider the relative injustice and hardship involved in refusing or granting an amendment.

7. Mummery J went on to say in Selkent:-

“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.”

8. Harvey at Paragraph 312.07 goes on to say:-

“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 Corporation (North) Ltd v Kelly [1989] IRLR 222 rather than on the statutory basis.”

9. I am satisfied, on the evidence that I have heard, that there is a link between the claims already made by the claimant for unfair dismissal, the right to be accompanied to a grievance hearing and the right to written reasons for dismissal and the alleged failure to pay the appropriate pay to the claimant during the notice period. I do not accept Mr Warnock’s submissions that the tribunal is constrained to look at the amendment at the date of the hearing rather than the date on which the amendment application was made by the claimant. I do not regard the decision in the case of the Welsh Development Agency to be of assistance to the tribunal in this regard dealing as it does with matters and legislation which is not involved in this case. I have reached the conclusion that the claimant should be permitted to amend his claim by way of the additional information provided in the letter of 13 November 2010. I reach that conclusion for the following reasons:-

(1) The claimant makes his application to amend within the primary three month period in which he would have been entitled to bring a new claim before the tribunal. I am satisfied that the claimant did not have knowledge of this potential claim at the time he lodged his original claim form and I am therefore satisfied that the time in which he did obtain the necessary information and present his application to amend was reasonable. The claimant did take steps to try and establish what his rights were including talking to the Labour Relations Agency, to a solicitor and through his own research on the internet. I consider that the amendment is properly brought within the three months primary time-limit allowed for bringing a claim and that there is no undue hardship to the respondent other than that they must meet and defend a claim without the windfall defence of a limitation point. The claimant, on the other hand, will be deprived of his opportunity to make his case and potentially seek appropriate remedy. I have also taken into account the fact that the claimant is a self-represented party and that as Mr Warnock has acknowledged, had he worded his application in a different manner to lodge a new claim rather than seek to amend his existing claim, then these problems would not arise. His explanation for pursuing the amendment path, in that they relate to the matters of which he has originally claimed indicate a reasonable approach.

(2) Even if I am wrong to hold that the amendment was properly brought within the three month period, I would, in any event, exercise my discretion on the basis the residual discretion identified in the quote above from Harvey. I consider that there is a greater hardship/ injustice in not allowing the amendment than in granting it. I have also taken into account the overriding objective and the fact that the claimant will be entitled to take separate breach of contract proceedings in the High Court. That is not, in my view, in the interests of justice. It is not proportionate, expeditious or saving expense to invite the parties to embark on satellite litigation in a different forum when matters can properly and speedily be dealt with in this tribunal.

Chairman:

Date and place of hearing: 13 January 2011, Belfast

Date decision recorded in register and issued to parties: