Industrial Tribunals Northern Ireland Decisions
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URL: http://www.bailii.org/nie/cases/NIIT/2013/2269_12IT.html
Cite as: [2013] NIIT 02269_12IT, [2013] NIIT 2269_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2269/12
CLAIMANT: Philip Johnston
RESPONDENTS: 1. Board of Governors, Knockbreda High School
2. South Eastern Education & Library Board
DECISION ON A PRE-HEARING REVIEW
(i) The decision of the tribunal is that the claimant’s application to amend his claim to include a claim under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 is refused.
(ii) At the conclusion of the hearing the tribunal also gave certain case-management directions, as set out at Paragraphs 5. and 6. below.
Constitution of Tribunal:
Chairman (sitting alone): Mr D Buchanan
Appearances:
The claimant appeared in person and was not represented.
The respondents were represented by Ms A Finnegan, Barrister-at-Law, instructed by Education & Library Board’s Solicitors.
1 The claimant’s employment as a teacher (Head of Department, Religion Education) with the first-named respondents ended on 31 August 2012. By a claim form presented on 12 November 2012 he alleged that he had been unfairly dismissed. The respondents’ case is that his fixed term post was terminated in the light of budget limitations. He claimed he was unfairly selected for redundancy. This is denied.
2(i) The pre-hearing review was held to determine whether he should be allowed to amend his claim form to include a claim that he was discriminated against under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (‘the 2002 Regulations’).
(ii) His claim form to the tribunal alleged only unfair dismissal, made no reference to the 2002 Regulations, and indeed contained no factual allegations which indicated, or laid any basis, for such a claim.
3 Consequently, this is not a re-labelling exercise in relation to facts already pleaded, but is a substantial alteration to the claim already before the tribunal. The consequence is that the new claim is out of time and the tribunal must consider whether the time-limit for bringing the new complaint should be extended under the relevant statutory provision, in this case Regulation 7(4) of the 2002 Regulations, which provides that the usual three month limitation period can be extended where the tribunal considers that, in all the circumstances of the case, it is just and equitable to do so.
4(i) Here the claimant states that he only became aware of facts which indicated a possible claim under the 2002 Regulations when he received documents by way of discovery from the respondents on or about 25 January 2013.
(ii) I was referred to these documents by him, and leaving aside the fact that I found some of his evidence about a potential claim under the 2002 Regulations disingenuous, he has not satisfied me that these documents in any way suggest that he was discriminated against because of his fixed term status. They did not advance his pre-existing knowledge of the potential for such a claim. At the time of his dismissal he was of course aware of his own fixed term status, of the reason given for his dismissal by the employer, and the circumstances surrounding the redundancies of permanent members of staff, and the retention of those others who would be his probable comparators.
(iii) In these circumstances I do not consider it appropriate to extend the time for bringing a complaint under the 2002 Regulations, and I refuse the amendment application.
5 I now give the following case-management directions:-
(i) The claimant continues to seek discovery from the respondents, notwithstanding the extensive discovery already made to him. At a previous Case Management Discussion on 7 February 2013 I expressed concern that this aspect of the matter was spiralling out of control. His more recent request for discovery comprised a list of 27 items. These were unfocussed, were to some extent a fishing expedition, and included comments on the case, and what were essentially interrogatories addressed to the respondents.
(ii) I made the following Order for Discovery and Inspection against the respondents:-
The respondents will provide to the claimant copies of all documents in their possession, custody or control which are relevant, or on which they intend to rely at the hearing.
This Order is to be complied with not later than 8 April 2013.
Attention is drawn to Appendix 1.
6. The matter will be heard at:-
10.00 am from 22 – 25 April 2013
Chairman:
Date and place of hearing: 20 February 2013, Belfast
Date decision recorded in register and issued to parties:
Appendix 1 CASE REF: 2269/12
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