Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    336/14

 

 

 

CLAIMANT:                      Alana Penney

 

 

RESPONDENTS:              1. Lorinda Graham

                                        2. Claire’s Accessories

 

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that the claimant’s claim is amended to include the following claims:

 

(1)      That the claimant’s hours were reduced from 30 to 20 hours during her period of sick leave in October 2013 and this resulted in a loss of pay and amounted to discrimination on grounds of her disability; and

 

(2)      That the claimant’s resignation on 31 May 2014 amounted to constructive dismissal on grounds of her disability.

 

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge Murray

 

 

 

Appearances:

 

The claimant represented herself and was accompanied by her Support Worker, Mrs Gowdy.

 

The respondents were represented by Ms B Brettell, accompanied by Ms Graham.

 

 

REASONS

 

1.       Ms Brettell confirmed at the outset of the hearing that she now acts on behalf of Mrs Graham, the first-named respondent.  I explained that correspondence would now go from the tribunal to Ms Brettell on behalf of both respondents.

 

2.       The following decision was delivered orally at the hearing:

 

          “The claimant’s application is for amendment of her claim form to include two additional claims.  I will deal with each of them in turn. 

 

          (1)      The first claim is that her hours were reduced from 30 to 20 hours during her period of sick leave in October 2013.  The claimant claims that this resulted in a loss of pay.  The claimant alleges that this amounted to disability discrimination because it was done without telling her when she was on sick leave.

 

          (2)      The Company disputes that there was any reduction in earnings as the Company, says that sick pay was calculated on average hours over the previous 13 weeks and this resulted in the claimant being paid on the basis of a 34-hour week.  The Company states that any loss of key-holder allowance was because the claimant was off sick.

 

          (3)      It is not my task to decide today who is right or wrong on that point as a lot will hinge on what the Company records show and what the claimant’s payslips say.

 

          (4)      As the claimant alleges this is an act of discrimination, I have to decide whether it is a new head of claim and whether it is in time.  I find that it is a new head of claim and it has been raised outside the three month time-limit.  I must therefore decide whether it is just and equitable to extend time, balancing the hardship to the claimant if it is excluded against the hardship to the respondent if it is included.

 

          (5)      One thread running through the claimant’s claim, which is already before this tribunal, relates to a dispute over hours and relates to the way the respondent dealt with the claimant’s medical condition.  Including this aspect in the existing claim would not cause the respondent to have to adduce a lot of evidence nor would it prolong the hearing in my view.

 

          (6)      I have looked at the GP report on the claimant’s medical condition namely mental health issues relating to anxiety and I have taken account of the information given by Mrs Gowdy, the claimant’s Support Worker today in deciding whether it is just and equitable to extend time.  I have concluded that it is just and equitable to extend time to include this in the claim in view of the medical evidence.

 

          (7)      The second part of the amendment application relates to the claimant’s claim of constructive dismissal relating to her resignation on 31 May 2014.

 

          (8)      The claimant says that she resigned because the grievance took so long to sort out, this meant things were not resolved between her and her line manager and that this amounted to disability discrimination because it was related to the behaviour of the line manager in the months before the claimant went off sick in January 2014.

 

          (9)      The claimant first raised the issue of constructive dismissal at a Case Management Discussion on 7 August 2014 and she indicated at that time that she intended to lodge a claim.  Her reason for failing to do so was that she was confused and forgot.

 

          (10)    The claimant clearly feels that she was forced to resign because of the respondent’s conduct in completing the grievance procedure.  I am not determining today whether the claimant wins or loses her case on that point and I note the points made by Ms Brettell for the Company on the merits of that claim.

 

          (11)    It weighs heavily with me that the claimant has been attending mental health professionals on a very regular basis since January 2014 and it is clear from the GP report that the claimant has long-standing mental health issues.  Given that the claimant did raise this point within the time-limit on 7 August 2014 at a CMD and given that she had her existing claim to deal with at that point, I accept that the claimant was confused to the extent that she did not lodge a fresh claim but wrongly believed that she could still include that constructive dismissal claim in the hearing of her existing claim.

 

          (12)    I am therefore persuaded that it is just and equitable for the claimant to amend this claim to include her claim of constructive dismissal as part of her disability discrimination claim.

 

          All aspects of the claim will now proceed to hearing on 26 January 2015”. 

 

 

 

 

 

Employment Judge:      

 

 

Date and place of hearing:         15 October 2014, Belfast.         

 

Date decision recorded in register and issued to parties: