Industrial Tribunals Northern Ireland Decisions

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Cite as: [2013] NIIT 1086_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1086/13

CLAIMANT: Beata Slipska

RESPONDENT: Michael Walsh (Senior) and Michael Walsh (Junior),

t/a Walsh’s Pharmacy

DECISION ON A PRE-HEARING REVIEW

The claimant’s application to amend her claim form is granted in part as set out in the body of this decision.

Constitution of Tribunal:

Chairman (sitting alone): Mrs Ó Murray

Appearances:

The claimant represented herself.

The respondent was represented by Ms A McLarnon, Barrister-at-Law, instructed by Comerton & Hill Solicitors.

Interpreter: Anna Pietrzak.

Reasons

The purpose of the hearing was to deal with the claimant’s application to amend her claim form to include the seven items listed at paragraph C of the CMD record of the hearing on 28 November 2013. The following decision was delivered orally at the hearing:

“1. The claimant’s application is to amend her claim form to include points 1-7 in the CMD record of 28 November 2013.

2. I have considered the evidence of the claimant and the arguments put forward by both sides. In relation to each point I must assess whether the proposed amendment amounts to more factual detail of a claim which has already been made; a relabeling of facts already put in the claim form; or a new head of claim in which case I must assess whether it is out of time and whether to extend time.

3. In deciding whether to grant the amendments I have balanced the injustice and hardship of granting the amendments, against the injustice and hardship of refusing them. I have also assessed whether they are minor amendments, requiring little further evidence, or whether they are substantial amendments, requiring more extensive evidence.

4. I am satisfied that points 1, 4, 6 and 7 comprise further detail of a claim which has already been made in that they will form part of the tribunal’s assessment of the disciplinary action and will also form part of the tribunal’s assessment of whether or not it was reasonable to require the claimant to lift things subject to a 7 kilogram maximum weight restriction.

5. I find that they are minor amendments and will require little further evidence. I therefore grant the amendment to include the factual allegations at paragraphs 1, 4, 6 and 7 as set out in the CMD record as follows:

“(1) The respondents had failed to provide her with a copy of the disciplinary and grievance rules;

(4) The post was unsafe for the claimant to return to after illness in January;

(6) The respondents had failed to give the claimant enough warnings prior to her dismissal; and

(7) The respondents were extending intentionally the claimant’s absence from their business and were forcing the claimant to remain on sick leave for over two years.”

6. Items 2 and 3 relate to health and safety training and risk assessments and the claimant seeks to amend them to include allegations of failures both before, and after, her accident.

7. At item 2 I refuse the application for amendment as I fail to see how it is relevant to the case being made where the claimant says that the point was that she was being required to lift up to 7 kilogram in weight and this was not appropriate for her. The issue is the reasonableness, or otherwise, of requiring her to lift at all, or to that level. Item 2 therefore comprises a new head of claim relating to breach of health and safety. It is not within the jurisdiction of the tribunal to adjudicate on any breach of health and safety of itself and I cannot see how it is relevant to the claim otherwise.

8. Item 3 relates to risk assessments. I allow the application to amend to a limited extent by adding words to the proposed amendment. The amendment will therefore read as follows:

“(3) “The respondents had failed to carry out appropriate risk assessments in requiring the claimant to lift as part of her duties and to set a limit of 7 kilograms on items lifted”.

9. This limited amendment is bound up with the existing claim so it amounts to a relabeling of facts already pleaded and will not require much extra evidence. To allow a wider amendment, as sought by the claimant, would be unjust and would case hardship to the respondent in relation to the extent of extra evidence required. In addition it would not be relevant to the case which focuses on the lifting issue as the claimant has alleged that this meant that she could not return to work.

10. Item 5 relates to alleged failure to provide itemised pay statements. I refuse the application to amend the claim for itemised pay statements. The claimant, on her account, was dismissed on 2 March 2013 and the claim form was presented on 1 June 2013. The claimant first raised the allegation to do with pay statements in September 2013. I find that this is a new head of claim and is clearly out of time.

11. The reasons given by the claimant for raising the claim late was that she is not unrepresented and she was depressed before the claim form was lodged on
1 June 2013.

12. I find that it was reasonably practicable for the claimant to have raised this claim especially as she had previously received advice on several occasions from a Citizens Advice Bureau and she could have gone again for advice following lodgement of her claim form. I note that the claimant was fit to represent herself at a hearing in the tribunal in August and she could therefore have raised the issue before she did so at the end of September 2013”.

Chairman:

Date and place of hearing: 12 December 2013, Belfast.

Date decision recorded in register and issued to parties:

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