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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKee v NSL Limited [2012] NIIT 01104_12IT (04 January 0 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/1104_12IT.html
Cite as: [2012] NIIT 1104_12IT, [2012] NIIT 01104_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1104/12
CLAIMANT: Nichola McKee
RESPONDENT: NSL Limited
DECISION ON A PRE-HEARING REVIEW
The tribunal allows the amendment to the claimant’s claim form by adding the further factual evidence about the claim alleged attached to this decision.
Constitution of Tribunal:
Chairman (sitting alone): Mr B Greene
Appearances:
The claimant was represented by Ms Sarah Doherty, of counsel, instructed by J M Hughes & Co. Solicitors.
The respondent was represented by Mr Michael Salter, of counsel on behalf of the respondent company.
Sources of Evidence
1. The tribunal did not hear any oral evidence. The tribunal had regard to the claimant’s claim form, the response, the Case Management Discussion record of proceedings of 30 August 2012 and the proposed amendment.
The Claim and Defence
2. (1) The claimant is claiming discrimination on the grounds of sex and sexual orientation. The respondent is denying the claimant’s claims in their entirety.
(2) Following a Case Management Discussion on 30 August 2012 the tribunal directed that a pre-hearing review be held to consider an amendment of the claimant’s claim form.
The Issues
3. (1) Whether the claim can be amended to include claims of sex discrimination or discrimination on the ground of sexual orientation.
(2) At the outset of the hearing Miss Doherty indicated that the claimant wished to withdraw her claim for discrimination on the grounds of sexual orientation. The respondent did not object to this course of action. Accordingly the tribunal dismisses the claimant’s claim for discrimination on the grounds of sexual orientation.
(3) Therefore the proposed amendment will continue in relation to an
application to amend on the ground of sex discrimination only.
Findings of Fact
4. The following facts found by the tribunal emerge from the documents of record or appear to the tribunal not to be in dispute:-
(1) The claimant presented her claim on 15 June 2012. At paragraph 7.4 of the claim form, which deals with the details of the claim, the claimant referred to an attached statement.
(2) At the Case Management Discussion on 30 August 2012 Miss Doherty informed the tribunal that because of an oversight part of the claimant’s statement had been omitted. On foot of that omission she sought to amend the claim to add the further details.
(3) The claimant’s solicitor forwarded to the respondent the full statement that the claimant says should have been attached to the claim form.
(4) The statement that was attached to the claimant’s claim form originally contains several references which are consistent with the existence of a fuller statement.
(5) The additional part of the statement deals with other allegations that the claimant alleges support her contention that she suffered discrimination on the grounds of sex.
(6) Miss Doherty indicated to the tribunal that the claimant would be making claims of sex discrimination, including sexual harassment and harassment on the grounds of sex.
(7) Miss Doherty submitted to the tribunal that the amendment related to factual matters only in support of the claimant’s claim and therefore it fell under the first category of amendment set out in the case of Selkent Bus Company and therefore did not attract any time limit issues. Hardship and delay are the aspects to be considered.
(8) The respondent submitted that these additional factual matters were in effect new claims and fell under the third category of amendment set out in the Selkent Bus Company case and therefore raise issues of time limits and balance of prejudice. The respondent further submitted that the claimant’s claim should be restricted to one of sexual harassment because that had been mentioned in a letter to the respondent from the claimant’s solicitor on 3 September 2012 and it also appeared in draft issues submitted by the claimant’s solicitor to the respondents.
The Law
5. (1) The tribunal has a discretion to make an order giving the claimant leave to amend his claim under Rule 10(2) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
(2) Tribunals are required to exercise their discretion in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial decisions (Selkent Bus Company Limited v Moore [1996] ICR836 at 842H).
(3) The principles to be applied by a tribunal when considering whether to permit an amendment are to be found in the Selkent Bus Company Limited v Moore case and are discussed in Harvey on Industrial Relations and Employment Law, Section P1 [311] to [313]. There are three categories of amendment applications:-
(a) The first category covers amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint. This category will not be subject to scrutiny in respect of time limits but will be subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.
(b) The second category covers amendments that add or substitute a new cause of action but one that is linked to, or arises out of the same facts already pleaded in the original claim. This category of amendment is usually described as putting a new “label” on facts already pleaded. This type of amendment will not be subject to scrutiny in respect of time limits provided that the claim which is sought to be amended has been presented in time, but will be subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.
(c) The third category covers amendments that seek to add or substitute a wholly new claim or cause of action or a new positive case involving consideration of facts that have not been previously pleaded 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 and “causative link” with the proposed amendment. Amendment applications coming within the third category are subject to scrutiny in respect of time limits as if they were entirely new claims that have been brought outside the time limit. The tribunal should therefore only exercise its discretion to grant an application to amend under this category if it considers it just and equitable to do so. In exercising the discretion the tribunal is required to consider the prejudice which each party would suffer as a result of granting or refusing the application and have regard to all the circumstances, in particular;
(i) the length of and reasons for the delay,
(ii) the extent to which the cogency of the evidence is likely to be affected by the delay,
(iii) the extent to which the parties should have co-operated with any requests for information,
(iv) the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action, and
(v) the steps taken by the claimant to obtain the appropriate professional advice once she knew the possibility of taking action.
(4) In deciding whether a number of alleged acts of discrimination can constitute “continuing acts” the focus should be on the substance of the complaints that the discriminator was responsible for an ongoing situation or a continuing state of affairs in which persons were treated less favourably on the prohibited ground. It is too rigid an approach to concentrate on whether the concepts of a policy, rule, scheme, regime or practice fitted the facts of the case. The burden is on the complainant to prove, either by direct evidence or by influence from primary facts that the numerous alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of “an act extending over a period” (Hendricks v the Commissioner of Police for the Metropolis [2003] IRLR 96).
Application of the Law and Findings of Fact
6. (1) The claimant has made a claim in her claim form for sex discrimination and therefore an amendment is not necessary to add a claim for sex discrimination.
(2) The amendment is to add a number of pages of her statement as part of her claim. The parties did not object to considering that as the wording of the amendment application. The tribunal therefore has taken that as the amendment that is being proposed by the claimant.
(3) The claimant’s representatives have asserted since the Case Management Discussion on 30 August that the statement attached to the claimant’s claim form was only part of what was intended to be attached. At the CMD the claimant’s representative stated that was an oversight and sought to have the full statement attached to the claim form. At the time the respondent’s representative objected and the amendment application was directed.
(4) The claimant’s explanation for the omission has not been challenged nor is there any matter before the tribunal which makes such an explanation untenable and therefore the tribunal accepts the explanation advanced on behalf of the claimant as the reason why the full statement was not attached to her claim form.
(5) The parties were agreed that the legal framework within which this application must be considered is that set out in the Selkent Bus Company case.
(6) Having considered carefully the submissions of the parties I am satisfied that the proposed amendment deals with factual matters and does not raise a new distinct head of complaint. It therefore falls within the first category of the Selkent Bus Company case category of amendment. It does not therefore attract considerations in respect of time limits but does raise considerations of hardship and delay in making the application to amend.
(7) The tribunal is satisfied that the claimant’s representative made the application to amend at an early stage and, on the face of it, as soon as they became aware that there had been an oversight in not attaching the full statement.
(8) The claimant’s claim form was lodged on 15 June 2012 and the application to amend was made on 30 August 2012. The claim is still at an early stage and the tribunal is satisfied that the respondent will not be prejudiced to any significant extent in having to deal with these additional matters.
In relation to the contention that the respondent will now have to face and deal with factual matters which are not part of the claim in the claim form, such matters may well be admissible under the Anya v Oxford University [2001] EWCA Civ 405 case. Thus, even if the amendment is not permitted, the respondent may well be confronted with the additional allegations and might have to put itself in a position to deal with these additional factual allegations.
(9) Even if the amendment is a third category amendment under Selkent Bus Company case, and attracts scrutiny from the point of view of time limits, an argument open to the claimant is to suggest that there existed within the respondent company a discriminatory state of affairs and therefore on the basis of the Hendricks decision it would be open to the claimant to argue that the appropriate date from which time begins to run is the date of the last of the discriminatory acts and therefore the claim would not be out of time.
(10) The same observations, in relation to the balance of prejudice test, apply under this category of amendment as apply under the first category of amendment and as are set out above. Even if this were a third category amendment the tribunal would have permitted the amendment.
(11) Accordingly the tribunal amends the claimant’s claim to include the full statement which was sent to the respondent and which is appended to this decision.
(12) This matter will now proceed to hearing in the normal way.
Chairman:
Date and place of hearing: 12 September 2012, Belfast.
Date decision recorded in register and issued to parties: