Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS:  733/14

829/14

 

 

 

CLAIMANT:                      Hristina Nikolova

 

 

RESPONDENTS:              1.       Grafton Recruitment Ltd

                                        2.       Kerry Foods Enniskillen

                                       

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that the amendments sought by the claimant constituted a new claim in both cases and that it would not be just and equitable in all the circumstances of the case to extend the time limits to allow the amendments.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge Crothers

 

 

Appearances:

 

The claimant was represented by Alexsandar Nikolov.

 

The first named respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by Pinsent Masons in Belfast LLP. 

 

The second named respondent was represented by Ms Karen Moore of EEF Northern Ireland.

 

 

The Issue

 

1.               The issue before the tribunal was whether the claimant should be granted leave to amend her claim so as to include a claim under the Agency Workers Regulations (Northern Ireland) 2011.

 

Sources of Evidence

 

2.               The tribunal relied on relevant documentation before it together with submissions from the representatives.

Background, Findings of Fact, and Submissions

 

3.              (i)       The claimant presented a claim to the tribunal (reference 733/14) on 23 April 2014.  Her complaints in paragraph 7.1 of her claim form related to race discrimination, equal pay discrimination, family status discrimination, gender discrimination and victimisation.  It was the claimant’s contention that her understanding of the category for “other” related only to discrimination type claims.  Mr Nikolov referred to the details of claim section in the claimant’s claim form and submitted that paragraph 1 related to Article 16 of the Regulations, paragraphs 2 and 5 related to Article 13, paragraph 3 to Article 5, and paragraph 7 to Article 17. 

 

(ii)      Article 16 relates to the right to receive information and is not included in Regulation 18 as the complaint which could be presented to an Industrial Tribunal.  The amendments sought therefore related to Regulation 5 (rights of Agency Workers in relation to the basic working in employment conditions), Article 13 (rights of Agency Workers in relation to access of employment) and Regulation 17 (Unfair Dismissal and the right not to be subjected to detriment).  It was explained to the claimant and her representative that should the tribunal ultimately decide that the amendments sought constituted a new claim, the time limits would have to be considered under Regulation 18(5) which states:-

 

                  “A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so”. 

 

          Mr Nikolov referred to the second case (reference 829/14), and sought a Regulation 5 amendment in relation to this claim.  This claim was presented to the Tribunal on 11 May 2014.

 

(iii)      It was not disputed that the claimant had sought advice from various sources from February 2014.  These sources were the Citizens Advice Bureau, the Labour Relations Agency, the Police, consultation with a solicitor in February/ March 2014 and subsequently.  The claimant had also approached the Equality Commission for Northern Ireland in February 2014.  Mr Nikolov submitted that the claimant was trying to understand the process and that she did not receive the necessary support from any of these sources.  Thereafter, she and her husband had to consider the legislative provisions themselves.  The claimant relied on lack of knowledge, understanding, and experience in relation to the process, although acknowledging that at all material times the claimant was an Agency Worker.

 

(iv)     There is a reference to Agency Workers in the first claim to the tribunal (733/14) (and in the Responses).  As already stated, the claimant contended, through her representative, that she thought that the category of “other” related to discrimination type claims only.  Mr Nikolov also submitted that he would know what to do now if completing the form (for the claimant). 

 

(v)      A Case Management Discussion was held on 13 August 2014 to timetable the case for hearing.  No issues were raised at that stage under the Regulations.  The claimant, in correspondence to the tribunal on 1 September 2014, referred to the amendment application by requesting that certain of the Agency Workers Regulations be included in the legal issues.  This was addressed further at a Case Management Discussion held on 9 October 2014 when a date for the pre-hearing review was provided.  The claimant was ordered to set out the proposed amendment for the benefit of the respondents’ representatives and the tribunal by not later than 16 October 2014.  This was done and was further refined in correspondence of 24 October 2014. 

 

(vi)     Mr Warnock, having submitted that the tribunal has no jurisdiction to hear a claim under Regulation 16, referred to the chronology as set out above from the dates of presentation of the claims to the tribunal until 24 October 2014.  He further submitted that any claims under the Regulations were wholly new claims not contained within the original claim forms and could not be regarded as a relabelling of facts already pleaded in the case.  He referred the tribunal to the complaints listed at paragraph 7.1 of case reference 733/14 and submitted that, on an overall reading of paragraphs 1-7 of the claim form, there were no claims contained therein under the Regulations.

 

(vii)     In relation to the case reference 829/14, Mr Warnock submitted that the claim was clearly an equal pay claim and that two comparators had been named.  He submitted that there was no reference to a claim under the Regulations, and that the second aspect of the case referred to discrimination on grounds of marriage. 

 

(viii)    Mr Warnock further submitted that time limits had to be considered in the context of the amendments sought.  He contended that that it was clear that there was no intention on behalf of the claimant to make claims under the Regulations and that such amendments had been sought at a late stage.  He submitted that the first named respondent would be prejudiced should such amendments be granted and that there would be a need for additional evidence by both respondents.  In addition, he contended that there would be a likelihood of further delay in setting the case up for hearing.  He further urged the tribunal to find against the claimant on both the balance of hardship ground under Selkent and under the just and equitable extension ground contained in Regulation 18. 

 

(ix)     Ms Moore adopted Mr Warnock’s submissions and made further submissions in relation to the alleged breach of Regulation 5 of the Regulations.  She submitted that the Regulation 5 amendment was a category 3 amendment (ie a new claim requiring consideration of time limits) and, if granted, the interlocutory process would need to be reopened and additional witness evidence called on behalf of the second named respondent.  She relied on the foregoing to contend that the balance of hardship was against the second respondent.

 

(x)      The tribunal considered further submissions from Mr Nikolov relating to Regulation 5, to what he referred to as the “tick box exercise” referred to by Mr Warnock and the efforts made to obtain support from the sources referred to earlier in this decision, together with the claimant’s lack of knowledge, experience, and understanding in relation to the process.

The Law

 

4.              (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).”     

 

(ii)      Regulation 18(4) and (5) of the Regulations provides:-

 

          “(4)   Subject to paragraph (5), an industrial tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months beginning –

 

                            (a)    In the case of an alleged infringement of a right conferred by regulation 5, 12, or 17(2) or a breach of a term of the contract described in regulation 10(1)(a) or of a duty under regulation 10(1)(b), (c) or (d), with the date of the infringement, detriment or breach to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the infringement, detriment or breach, the last of them;

 

(b)        In the case of an alleged infringement of the right conferred by regulation 13, with the date, or if more than one the last date, on which other individuals, whether or not employed by the hirer, were informed of the vacancy.

 

                    (5)    A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

 

(iii)      The discretion to extend time is unfettered and may include a consideration of the date from which the claimant could reasonably have become aware of her right to present a worthwhile complaint (Mill v Marshall [1998] IRLR 494 EAT).  In exercising the discretion, tribunals must consider whether it is “just and equitable” to exercise it in the claimant’s favour.  The discretion afforded to the tribunal is a wide and unfettered one.  The tribunal will err it proceeds on the basis that an extension would be refused in all but exceptional circumstances (Malcolm v Dundee City Council [2012] Eq LR 363 CS).  The case of Robertson v Bexley Community Centre [2003] IRLR 434 CA held that the tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time.  It is entitled to consider anything that it considers relevant.  When tribunals consider their discretion to consider a claim out of time on just and equitable grounds, there is no presumption that they should do so unless they can justify failure to exercise the discretion.  On the contrary a tribunal cannot hear a complaint unless the claimant convinces it that it is just and equitable to extend time.  The exercise of discretion is thus the exception rather than the rule.

 

Conclusions   

 

5.               Having carefully considered the relevant documentation together with the submissions, the relevant principles of law, and findings of fact, the tribunal concludes that the amendments sought constitute a new claim in both cases and that it would not be just and equitable in all the circumstances of the case to extend the time limit to allow the amendments.  The claimant clearly had access to a number of sources of advice from February 2014 onwards and she was aware that the framework for her assignment at all material time was the Regulations.  The tribunal also considered the sequence of events and the fact that the claimant also delayed until after the CMD held on 13 August 2014 before raising the issue of amendments in correspondence of 1 September 2014.  It also considered the possible prejudice to the respondents in allowing the amendments, having considered the matters raised in paragraph 3 (viii) and (ix) of this decision.

 

          In the alternative the tribunal is satisfied that the amendments should not be allowed on the balance of justice and hardship ground.

 

 

 

 

 

Employment Judge:      

 

 

Date and place of hearing:  27 October 2014, Belfast                 

 

 

Date decision recorded in register and issued to parties: