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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Woods v Chief Constable of the Police ... [2011] NIIT 1438_10IT (17 January 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/1438_10IT.html
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1438/10
CLAIMANT: John Calvin Woods
RESPONDENTS: 1. Chief Constable of the Police Service of
Northern Ireland
2. PSNI Air Support Unit
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant’s claim can be amended. I allow the amendments contained in Paragraph 3 – 7 of the claimant’s application to amend, with the exception of the application to amend each of those paragraphs to include a claim of religious discrimination.
Constitution of Tribunal:
Chairman (sitting alone): Mr Patrick Kinney
Appearances:
The claimant appeared in person and represented himself.
The respondents were represented by Mr Coll, Barrister-at-Law, instructed by Crown Solicitor’s Office.
1. The hearing was arranged to consider the claimant’s application to amend his claim form. The claimant presented a claim to the Office of the Tribunals on 25 May 2010. In that claim form, the claimant makes claims of race and age discrimination. At Paragraph 7.4 the claimant refers to a flight test given by the respondents as part of a recruitment process. The claimant states that it is his belief that the flight test was used to discriminate against him. At Paragraph 8.1 of his claim form the claimant also stated that he had submitted a questionnaire to the respondents and he concluded:-
“I am forced to submit this application to protect my position due to the time that the alleged act of discrimination was carried out, ie when I was notified by the respondents and the time I became aware of the status of the successful candidates.”
2. The respondents subsequently sought an extension of time in which to file their response which was granted and the time in which to lodge a response was extended to 28 July 2010. A response was subsequently presented and the matter was listed for a Case Management Discussion which took place on 12 October 2010. At that Case Management Discussion it became clear that the issues did not encompass all the allegations the claimant wished to make following his perusal of discoverable documentation. The claimant was directed to write to the respondents outlining further allegations he wished to include by way of amendment to his claim. The claimant then wrote to the tribunal on 15 November 2010 setting out the amendments he wished to make to his claim. In essence, he wished to extend the remit of his claim to other aspects of the recruitment process to include the paper sift and the interviews. He also sought to include religious discrimination in both these sections of the recruitment process and also to the flight test of the section which was included within his claim form.
3. At Paragraphs 3, 4 and 5 of his application to amend the claim, the claimant accepted these were not included in his original claim form. This aspect of his application to amend is to include new matters not included within the claim form. He, however, submits that these are part of the recruitment process and that the information relating to this aspect of the recruitment process could only become available to him following discovery from the respondents. He pointed out that the respondents had failed to reply to his statutory questionnaire and that as soon as the relevant information was with him he took immediate steps to seek to amend his claim. Paragraphs 6 and 7 of the claimant’s application to amend his claim relate to the flight test aspect of the recruitment exercise. Mr Coll has accepted that the detail in Paragraph 7 headed ‘the final selection meeting’ is within the ambit of the claim already presented by the claimant and he takes no point on this amendment. The contents of Paragraph 6 headed ‘the flight test’ are equally within the content of the claim form. However, the claimant seeks to re-label this aspect of the claim as a claim for religious discrimination and Mr Coll objects to such re-labelling.
The law
4. The tribunal has power to amend a claim under Rule 10(2)(a) of the Industrial Tribunals Rules of Procedure 2005. In exercising this power, I have a broad discretion to seek to do justice between the parties having regard to the circumstances of the case. Both the claimant and Mr Coll referred to the case of Selkent Bus Company Ltd v Moore [1996] IRLR 661. Mr Justice Mummery stated in that case that the discretion to grant leave should be exercised:-
“In a manner which satisfied the requirements of relevance, reason, justice and fairness inherent in all judicial indiscretions.”
5. Mr Justice Mummery went onto set out general guidance in relation to amendments:-
“(4) 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.
(5) 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 many different kinds, ranging on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, 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 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 … .”
6. The applications to amend fall into two categories in this case. The first is the addition of new factual details and new factual allegations to existing allegations, and the addition or substitution of other labels for those facts and facts already pleaded. Mr Coll has already conceded that Point 7 in the claimant’s application is accepted. Point 6 is accepted but not insofar as it seeks to introduce a new claim for religious discrimination.
7. Mr Coll fairly accepted that many of the matters which the claimant sought to include by way of amendment were likely to arise in the tribunal in any event, either on the basis of the guidance given in Anya v University of Oxford and Anor [2001] ICR 847 or otherwise. Mr Coll also accepted that there would be little difference in the evidence required to be called or the witnesses that will be called as the matters all arise from the same recruitment process.
8. There are two matters for the tribunal to determine. The first is the addition of factual details and the second is the addition of a claim of religious discrimination. I will deal firstly with the claim for religious discrimination. On the basis of the information before me today I am not satisfied that there is any clear evidential basis for including a claim of religious discrimination. At its height it is based on the assertion made by the claimant that one candidate (Candidate ‘F’) was a National of the Republic of Ireland and was likely to therefore to be of a particular religious persuasion. However, there was no evidence or information before the tribunal to say what religious or perceived religious belief Candidate ‘F’ had or indeed what perceived religious belief the claimant had. I am therefore not satisfied that it is appropriate to include this as a new claim.
9. In relation to the additional factual details, it is my view that the proposed amendment should be allowed. I believe there will be a greater injustice to the claimant if the amendment is refused than there will be to the respondents if it is allowed. The details are closely related to the claim already pleaded. They all arise from the same recruitment process. In his claim form the claimant has concentrated on the flight test aspect of the recruitment process. He was unable to comment on or to consider other aspects of the recruitment process at that time as he did not have those details. Mr Coll has accepted that much of the evidence relating to these points will come before the tribunal in any event. There is an issue as to whether or not the claimant has suffered any detriment in relation to the earlier parts of the recruitment process which he successfully completed, but that is a matter more properly to be addressed by the tribunal hearing the case. Secondly, the wider claim involving the entire recruitment process would reasonably have been anticipated by the respondents as a natural claim made by a claimant who is unhappy with a selection process in which he is not successful. It provides, in the circumstances, something of a windfall benefit to the respondents only to deal with one aspect of the retirement process and in balancing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it, I consider the balance favours the claimant.
10. Thirdly, the claimant’s application was made promptly. The respondents cannot point to any particular prejudice caused to it by the late amendment and indeed Mr Coll again very fairly accepts and does not challenge the promptness of the claimant’s application to amend.
11. For those reasons and following the claimant’s application to amend the claim dated 15 November 2010, I allow the amendments contained in Paragraph 3 – 7 of that correspondence with the exception of the application to amend each of those paragraphs to include a claim of religious discrimination.
Chairman:
Date and place of hearing: 10 December 2010, Belfast
Date decision recorded in register and issued to parties: