Industrial Tribunals Northern Ireland Decisions
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URL: http://www.bailii.org/nie/cases/NIIT/2013/1685_12IT.html
Cite as: [2013] NIIT 01685_12IT, [2013] NIIT 1685_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1685/12IT
CLAIMANT: Nicholas Richard Heard
RESPONDENT: Northern Ireland Council for the Curriculum, Examinations and Assessment (CCEA)
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant is not granted leave to amend his claim form to include further claims of direct racial discrimination and victimisation.
Constitution of Tribunal:
Chairman (Sitting alone): Mr S A Crothers
Appearances:
The claimant was present and represented himself.
The respondent was represented by Ms S Bradley, Barrister-at-Law instructed by Jones Cassidy Jones Solicitors.
ISSUE
1. The issue before the tribunal was whether the claimant should be granted leave to amend his claim form to include a further claim of direct racial discrimination and a new claim of victimisation.
BACKGROUND FACTS
2.
(i) At a Case Management held on 29 November 2012, the main legal and factual issues in the claimant’s claim were agreed and set out in detail in the Record of Proceedings. The claimant presented his claim to the tribunal on 3 September 2012. He brought claims of direct and indirect racial discrimination, constructive dismissal, and breach of contract.
(ii) The Case Management Discussion Record of Proceedings dated 7 December 2012 includes the following:-
“After some discussion with the parties it appeared that the proposed amendment does not arise from anything within the claimant’s claim form. If the claimant wishes to pursue the proposed amendment, he will need to formally apply to amend his claim form, attempt to secure the agreement of the respondent and in default of agreement apply to the tribunal for leave to make the amendment”.
(iii) The claimant emailed the tribunal office on 5 February 2013 enclosing a proposed amendment and stating as follows:-
“Thank you for the Record of Proceedings of the Case Management Discussion of the above case dated 7 December 2012.
I refer to points 3 and 4 from the Factual Issues section of the Record of Proceedings of the CMD. Having studied the record and the cases referred to by the Chairman during the proceedings, I have decided that I would like to amend my Claim Form to take account of further evidence of alleged discrimination that I was unaware of at the time of submitting my form. As advised in the Record, I have requested the Respondent’s agreement to do this but it has not acceded. In default of this agreement, I therefore wish to apply to the Tribunal for leave to make the amendment. I would add that I do not intend to seek any extra compensation for this alleged discrimination, merely to use it as additional supporting evidence in the existing discrimination claim.
The respondent opposed the amendment application.
I am attaching the formal request and the amendment which I would like to make”.
(iv) Part of the proposed amendment relates to events subsequent to the date in which the claimant’s resignation took effect, ie, 5 June 2012. He concludes the proposed amendment by stating:-
“If the Respondent had no intention of replacing me, then it had no reason to refuse me voluntary severance other than the fact that I was from a different country of origin to the other officers who were granted voluntary severance and was asking to be treated on an equal basis”.
(v) The claimant had already provided his witness statement on 15 February 2003 to the respondent which includes material drawn from the proposed amendment.
(vi) A further Case Management Discussion was held on 12 March 2013 to consider, inter-alia, the claimant’s application to amend his claim form and to consider the respondent’s contention that any amendments should be considered by way of a Pre-Hearing Review. After some discussion with the parties it was agreed to list the amendment application at a Pre-Hearing Review. The record of that Case Management Discussion dated 15 March 2013 includes the following:-
“As the discussion about amendments, and how it is to be done, and a number of the considerations applicable to an amendment application were discussed at length in the previous Case Management Discussion on 29 November 2012 the Chairman directed that a PHR be listed to consider whether the claimant’s proposed amendment to his claim form be allowed”.
THE LAW
3. (i) In relation to amendments a distinction has to be drawn between amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint; 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 amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.
Harvey on Industrial Relations and Employment Law (“Harvey”) states at T(312.04) as follows:-
“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 312.06 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).”
SUBMISSIONS
4. (i) The tribunal was assisted by helpful written submissions from the claimant which are annexed to this decision and, with Ms Bradley’s agreement, by a copy of her outline notes which she addressed further by way of oral submissions. Ms Bradley submitted that the proposed amendment alleging discrimination in the refusal of the respondent to afford the claimant voluntary severance, was an entirely new claim requiring consideration of time-limits. She submitted that it would not be just and equitable for the tribunal to extend time as the claimant had delayed in making the amendment application after the Case Management Discussion held on 26 November 2012. She also submitted that the case had already been listed for hearing and, should the claimant be given leave to amend his claim, the respondent would not only have to request a postponement of the substantive hearing but would have to consider some 30 comparators who obtained severance payments. This was apart from the separate interlocutory processes involved. She further submitted that allowing the amendment would represent injustice and hardship for the respondent which would far outweigh any hardship to the claimant as he could present a fresh claim to the tribunal. Furthermore, the respondent’s witness statements could not be provided as timetabled until after the outcome of the amendment application. She submitted that there was no causative link to bring the application within “Category (ii)” and that any prejudice to the claimant was not as great as that to the respondent as his original claim could proceed even if the amendment were not to be allowed.
(ii) The tribunal took the claimant’s written submissions into account together with his further oral submissions. He contended that there was a causative link between the case as set out in the claim form and the proposed amendment. He also submitted his reasons why there was a delay until 5 February 2013 before he made his amendment application and pointed out that the tribunal rules placed no time-limits on making such an amendment application. Ms Bradley then raised her concerns that the proposed amendment, considered further in light of the claimant’s oral submissions, would indicate that the claimant was making a separate victimisation claim as well. She submitted that the claimant appearing to be suggesting that one of the reasons or ‘some’ of the reason why he was not given voluntary severance was because he had raised the issue of being treated equally. (The claimant had already submitted that the reason the respondent had refused him voluntary severance was because he was asking to be treated on an equal basis with others who had claimed an interest in voluntary severance in Northern Ireland).
CONCLUSIONS
5. Having considered the facts, together with the parties’ submissions and applied the principles of law to the findings of fact, the tribunal concludes as follows:-
(i) The tribunal is satisfied that the proposed amendment is effectively an entirely new direct discrimination claim on racial grounds relating to the respondent’s refusal of voluntary severance. Furthermore, the tribunal is satisfied that the nature of the proposed amendment also involves a potential victimisation claim which is an entirely a new claim, also brought well out of time.
(ii) The claimant could have brought his application for an amendment well before 5 February 2013, in light of the discussions held at the Case Management Discussion on 29 November 2012. Furthermore there is an absence of hardship to the claimant as his claim can in any event proceed on the original basis.
(iii) There is a greater risk of hardship to the respondent if the amendment is allowed, resulting from a postponement of the proceedings and a longer hearing, with a concomitant increase in costs which would not be recoverable.
(iv) The tribunal is therefore satisfied that the proposed amendments constitute new claims and that, based on the evidence and the principles of law referred
to above, it would not be just and equitable to extend time to allow the amendments. In the alternative it is satisfied that the amendments should not be allowed on the balance of justice and hardship ground.
Chairman:
Date and place of hearing: 25 March 2013, Belfast.
Date decision issued to parties:
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