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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKeag v Simon Community (NI) Ltd Simon Community (NI) Ltd [2014] NIIT 01454_13IT (14 February 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1454_13IT.html
Cite as: [2014] NIIT 1454_13IT, [2014] NIIT 01454_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1454/13
2098/13
CLAIMANTS: 1. Maura McKeag
2. Gillian Blair
RESPONDENT: Simon Community (NI) Ltd
DECISION ON A PRE-HEARING REVIEW
Constitution of Tribunal:
Chairman (sitting alone): Miss E McCaffrey
Appearances:
The claimants were represented by Mr N Gillam of Donnelly and Kinder Solicitors.
The respondents were represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons Solicitors.
1. This matter was listed for a Pre-Hearing Review to consider the following questions:-
(1) Whether the references in the final sentence of paragraph 18 of the ET3 (in Ms McKeag’s case) and any references in associated correspondence to or in connection with a job offer are admissible in evidence, or whether such references should be deleted?
(2) Whether the new claim and response (lodged by Ms Blair) in relation to an alleged failure to consult is within time and if not, whether time should be extended? If time is extended, should the matter be consolidated with the present claim?
(3) Without prejudice to the new claim/response, whether the original claim by Ms McKeag should be amended to include a claim by Gillian Blair for failure to consult a properly appointed employee representative for TUPE purposes?
2. The background to this matter was as follows. The claimant, Ms McKeag (the first claimant) was employed by the respondent following a Transfer of Undertaking by her original employer (Edward Street Hostel Ltd) to the respondent on 28 January 2013. Following that transfer the claimant was advised that her position was at risk of redundancy and she was subsequently made redundant on 17 May 2013. She lodged a claim in the Industrial Tribunals on 7 August 2013 alleging:
(a) unfair dismissal pursuant to Regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“the TUPE Regulations”),
(b) failure by the respondent to comply with the requirements of Regulations 13 and 14 of the TUPE Regulations as regards their obligation to inform and consult in respect of the claimant’s redundancy,
(c) unfair dismissal contrary to Article 126 of The Employment Rights (Northern Ireland) Order 1996 and finally a claim of disability discrimination.
3. The respondent lodged a response to the initial claim dated 10 September 2013. That response form refers to the fact that a “without prejudice” offer had been made to the claimant under cover of a letter of 4 September 2013. That offer was subsequently repeated in open correspondence on 12 September 2013 to the claimant’s solicitor. The claimant’s representative considered that the inclusion of this matter in the response form was prejudicial and sought to have it removed.
4. Subsequently in early November 2013 the claimant’s representative wrote to the tribunal and to the respondent’s representative seeking agreement to amend the claim form in relation to the claimant’s claim. He set out in his letter that one of the heads of claim in the original claim form was that the respondents had failed to inform and consult in respect of the redundancy of the claimant prior to the transfer. He went on to state that:-
“The correct claimant in such a case, pursuant to Regulation 15(1)(b) (of the TUPE Regulations) is therefore one of the elected representatives from the transfer exercise Ms Gillian Blair of 3 Dorchester Park, Portadown. Ms Gillian Blair... has agreed to pursue this claim on behalf of the claimant.”
5. The respondent replied, objecting to the proposed amendment on the basis that this was an entirely new claim which added an entirely new claimant and also that it was outside the time-limit stipulated in Regulation 15(12) of the TUPE Regulations.
6. The TUPE Regulations set out
the responsibilities of both transferring and transferee employers in relation
to consultation of affected employees. In cases where there is a recognised trade
union, the employer is obliged to consult with Union representatives. Where
there is no recognised trade union, employee representatives may be elected by
the affected employees and carry out negotiations on their behalf. There is
also a residual provision in Regulation 15(1)(d) which provides that where
an employer has failed to comply with the requirement of Regulation 13 or
14, a complaint may be presented to an Employment Tribunal on that ground “(d)
in any other case, by any of his employees who are affected employees”. The
legal representatives have helpfully referred me to the relevant provisions in Harvey
on Industrial Relations and Employment Law Division F,
paragraph 277.03 where it is made clear that a claim for failure to inform
and consult under TUPE may well be brought by a trade union if the trade union
is recognised for the relevant category of employees (Martello Professional
Risks Ltd v Barnes). It must also follow that if employees in
a
non-unionised business have, after the employer’s invitation, elected employee
representatives, the claimant must be brought by those employer
representatives. Harvey refers to a decision of the European
Court of Justice in Mono Car Styling SA v Dervis Odemis C-12/08
[2009] 3CMLR1589 where the ECJ held the right to information under the Collective
Redundancies Directive is intended for workers’ representatives and not workers
individually. It is perhaps relevant to note the remedy for failure to consult:
where a tribunal finds a complaint against a transferee or transferor to be
well-founded, it shall make a declaration to that effect and may order the
employer to pay appropriate compensation “to such descriptions of affected
employees as may be specified in the award”. (See Regulation 15(7)
and 15(8).) It is relevant to note that the transferee employer shall be
jointly and separately liable with the transferor in respect of such
compensation.
7. Question 1
Should reference in the ET3 form to a “without prejudice” offer to the claimant be deleted?
The claimant’s representative indicated that the first question was a matter of privilege, and his understanding of the “without prejudice” rule was that it must be waived by both parties for waiver to be effective. He noted that the without prejudice letter in this matter had been sent by the respondent to the claimant after commencement of proceedings. No consent had been given by the claimant to being referred to in the ET3 and accordingly it was his case that it should be struck from proceedings. He referred us to the recent decision of the Employment Appeal Tribunal in England and Wales in Gallop v Newport City Council (UKEAT/0586/10/DM). Judge Peter Clarke referred to the fact that the tribunal in that case had become aware of compromise negotiations and added: “As a matter of general principle, that is plainly wrong. The tribunal should not have admitted evidence as to compromise negotiations absent a clear waiver by the parties.” Mr Hamill, while he objected to the removal of the relevant portion from the ET3 on behalf of the respondent, indicated that the same offer had been repeated in open correspondence subsequently and therefore this would in due course be opened to the tribunal. From a practical point of view he therefore did not see any great difference.
On this particular point I have some sympathy with the claimant’s point of view. In spite of the fact that for practical purposes the matter may ultimately be opened to the tribunal hearing the matter, I do not consider it proper for the respondent to have unilaterally waived privilege in this way, nor do I consider it appropriate for the tribunal hearing the matter to be put on notice of this in advance of the commencement of the case. In my view this would be prejudicial to the claimant. Accordingly I order that the second part of paragraph 18 in the respondent’s first ET3 (passage commencing “Accordingly since SNCI has received the claim form... to SCNI08 a response in this regard”) shall be deleted from the response form. The respondents should lodge a further copy of the response form excluding this passage.
Questions 2 & 3
Proposed amendment of the claim or admission of a further claim of failure to consult by Ms Blair.
The claimant and the respondent have lodged respectively a further claim form in the name of Ms Blair (the second claimant) and a response form as directed by the Vice-President at the Case Management Discussion. Effectively the matter before me comes down to this: is it appropriate for the first claimant to seek to amend her claim form to include a claim for failure to consult under the TUPE Regulations lodged on her behalf by her elected representative (the second claimant), or should such a claim form be made by a separate claim brought by the second respondent and if so, is that second claim out-of-time?
In many instances where there is an application to amend a claim form, it is done because a particular head of claim has not been fully explored or clarified in the initial claim. Harvey on Industrial Relations and Employment Law (“Harvey”) at section P1, paragraph 311.03 distinguishes between three categories of amendments:-
(1) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;
(2) amendments which add or substitute a new cause of action but one which is linked to, arises out of the same facts as, the original claim; and
(3) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.
Mr Gillam referred me to two recent authorities of the Employment Appeal Tribunal in England and Wales and I am grateful for the authorities to which I was referred and the argument received from both representatives. Both these cases involved amendments of the type of claim. In Enterprise Liverpool Ltd v Jonas and Others (UKEAT/0112/09/CEA), Judge Peter Clarke noted that there had been three transfers of undertaking in that case, and in each case individual claimants had brought a claim alleging failure to provide information and consult under Regulations 13 and 14 of the TUPE Regulations 2006. However, all of the individuals concerned were members of unions and which were recognised by the employer. After the claims had been lodged the solicitors who were then instructed noted that the claims should have been brought by the relevant union and wrote to the tribunal seeking an amendment of the proceedings. Judge Clarke noted that Rule 10(2)(q) of the relevant regulations (which are contained in this jurisdiction in Rule 10(2)(q) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005 (“the 2005 Rules”)) give express power to an Employment Tribunal or judge to give leave to amend a claim of response. Rule 10(2)(k) envisages joinder of respondents for the remedy claimed. There is however no specific additional provision for the substitution or addition of claimants. That said, I note that Rule 10(1) of the Northern Ireland Rules of Procedure provides that a Chairman “may at any time either on the application of a party or in his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit.”
In Jonas, Judge Clarke considered that would be appropriate to allow the amendment granted by the Employment Judge. He believed that the Judge had correctly followed the decision in Transport and General Workers Union v Safeway Stores Ltd, applied the balance of hardship test and reached a permissible conclusion.
In the Safeway case (UKEAT/009/07/LA), Mr Justice Underhill noted that although Rule 10(2)(q) of the Employment Tribunal Rules gives tribunals a general discretion to allow the amendment of a claim form, it might be thought to be wrong in principle for that discretion to be used so as to allow a claimant to - in effect - get round the statutory limitation period. He went on to say that the position on the authorities however is that an Employment Tribunal has discretion in any case to allow an amendment which introduces a new claim out of time. In a detailed review of the case law, he considers the appropriate conditions for allowing an amendment. In particular, he referred to the guidance of Mr Justice Mummery (as he then was) in Selkent Bus Company Ltd v Moore [1996] ICR 836 where he set out some guidance. The guidance included the following points:-
“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.
“What are the relevant circumstances? It is impossible and undesirable to attempt to list to them exhaustively but the following are certainly relevant.
“(a) The nature of the amendment
Applications to amend are of many different kinds, arranging on the one hand for 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 one hand, the making of entirely new factual allegations which changed the basis of the existing claim. The tribunal has to decide whether the amendment sought is one of the minor matters or is it 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...
(c) The timing and manner of the application...”
8. He also referred to the decision of the Court of Appeal in England and Wales in Ali v Office of National Statistics [2005] IRLR 201 where Lord Justice Waller referred to Mr Justice Mummery’s guidance in Selkent, pointing out that in some cases, the delay in bringing the amendment where the facts had been known for many months made it unjust to do so. He continued “There will further be circumstances in which, although a new claim is technically being brought, it is so closely related to the claim already the subject of the originating application, that justice requires the amendment to be allowed, even though it is technically out of time.”
9. Underhill J also considered the relevant extract from Harvey in relation to the threefold categorisation of proposed amendments. He referred to the fact that the discussion in Harvey points out that there is no difficulty about time-limits as regards categories one and two, since one does not involve any new cause of action and two, while it may formally involve a new claim, is in effect no more than “Putting a new label on facts already pleaded”. He went on to clarify that the decisions in Selkent and in Kelly were inconsistent with the proposition that in all cases which cannot be described as “relabelling” an out of time amendment must automatically be refused; even such cases he stated that the Tribunal retains a discretion.
10. In this case I have been concerned to consider whether it would be necessary or appropriate for me to permit an amendment of the claim form which is different to those referred to in the authorities. Effectively, Mr Gillam invites me to permit an amendment which will add a claimant (Ms Blair) in relation to one of the matters pleaded by the first claimant (Ms McKeag) in her initial claim form, that is the issue of an alleged failure to consult with the employee with the elected representatives under the Transfer of Undertakings Regulations 2006. There is no doubt that this matter is explicitly pleaded in the claimant’s claim form, and that claim was brought within time. The question is whether it is appropriate to permit this claim which would effectively introduce a new claimant and arguably shift the basis of a claim from Regulation 15(1)(d) of the TUPE Regulations to Regulation 15(1)(b) of the Regulations.
11. In considering whether it was appropriate to allow the amendment, I have to take into account not just the interests of the claimant but also those of the respondent. Mr Hamill argued against allowing the amendment. He argued that the claim form lodged on behalf of Ms Blair was out of time and should not be allowed in. Mr Gillam frankly admitted that if his only option was lodging a further claim in Ms Blair’s name and relying on the “reasonably practicable” test to seek an extension of time for lodging that claim, he believed that he would be in difficulty.
12. Mr Hamill argued that the application to amend the first claimant’s claim form to include a claim by the second claimant was misconceived. He suggested that the tribunal was being invited to subvert the statutory time-limit by “piggybacking” on an existing claim. He noted that it was a new claim and not a claim that Ms McKeag could bring on her own behalf.
13. It is however important to note that the claim in respect of failure to consult is set out in the first claimant’s original claim form and is addressed by the respondent in its ET3 form. While it is correct to say that the claim in relation to failure to consult must be brought by an elected representative where there is one, that claim is not for the benefit of the elected representative, but is for the benefit of the claimant in the initial case. “Any award made in respect of failure to consult is to be paid to the affected employee.” (See Regulation 15(8) of the TUPE Regulations). Having considered this matter in fully and also my obligations under Regulation 3 of the 2005 Rules, I believe that it is in the interests of justice and in accordance with the overriding objective to permit the amendment of the original claim form in this matter. The respondent is already on notice of the claim in relation to failure to consult, as it is set out in the first-named claimant’s original claim form which was lodged in time. There can therefore be no element of surprise as far as a respondent is concerned. Given that the respondent is on notice of the claim, I do not believe that it is prejudiced in any way by including this claim or that there is any question of hardship to the respondent. It will have to address a claim which has already been indicated to it, but that is unfortunately a fact of life in industrial relations claims. There would arguably be a greater hardship to the claimant if she was unable to pursue this claim, in that she may lose out on an award made by the tribunal in relation to failure to consult. I believe that the potential injustice to her is greater than a potential injustice to the employer if this matter is allowed to continue. Although the claim for breach of the statutory duty to consult is a new claim, it is very closely related to the claim originally lodged. While I would not go so far as to say that it is a mere “relabelling” of matters already pleaded, it does depend on facts which are substantially, already alleged. In these circumstances I do not think that it would be just and equitable for the employer to benefit from a “windfall” through any error made in the initial advices given to the claimant (if indeed there was such an error).
14. In all the circumstances, I replied to Question 3 by saying that the original claim should be amended to include a claim by Ms Blair in relation to failure to consult a properly appointed employee representative for TUPE purposes. In these circumstances it is not necessary for me to consider Question 2.
Chairman:
Date and place of hearing: 5 February 2014, Belfast.
Date decision recorded in register and issued to parties: