Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 839/15

 

 

 

CLAIMANT: Raimondas Matulionis

 

 

RESPONDENT: Terex GB Ltd

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant's application to amend his claim is granted as set out in the body of this decision.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Murray

 

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr P Bloch, of

Engineering Employers' Federation Northern Ireland.

 

Interpreter: Ms Beata Rokaitiene.

 

Issues

 

1. The issues to be determined at this pre-hearing review ('PHR') were set out in the Notice of Hearing as follows:-

 

"(1) Whether the claimant's claim as presently drafted includes a claim for unfair dismissal on grounds of having made protected disclosures (commonly known as a 'whistleblowing' case). In this regard the claimant relies on the documentation attached to his claim form and in particular the document attached hereto entitled 'Reasons why Terex want to destroy me'.

 

(2) If the claim does not include a claim of unfair dismissal on grounds of having made a protected disclosure, should the claim be amended to include such a claim and, if so, are there any time-limit issues?"

 

The parties' submissions

 

2. The claimant gave evidence and was cross-examined in relation to the time-limit issues. Otherwise the hearing ran by way of submissions by both sides.

 

3. The respondent's representative made the following points:-

 

(1) That the claim form did not contain any reference to a whistleblowing claim in any terms. Whilst the claimant referred to attached documentation, such documentation could not be taken into account as the claimant was specifically informed in the form not to attach documentation.

 

(2) That the issue of whistleblowing was raised by me at a Case Management Discussion and that this went beyond the task of an Employment Judge.

 

(3) That it is for the claimant to make his own case, particularly as the claimant made clear that he had taken legal advice before the PHR.

 

(4) That it would be unjust for the respondent to have to answer such a claim.

 

(5) That if the tribunal were minded to allow such claims to be included as part of the case, this amounted to more than a re-labelling exercise and involved time-limit issues. In this regard, the respondent's representative submitted that the allegations set out in the document attached hereto headed : ' Reasons why Terex want to destroy me', amount to separate acts, all of which are out of time. In particular, the reference to the incident on 29 July 2011 and its aftermath were dealt with by the respondent to the claimant's satisfaction and he therefore suffered no detriment as a result.

 

4. The claimant's points were, in summary, as follows:-

 

(1) That he raised an issue about a health and safety matter in July 2011. The incident resulted in the claimant receiving a Final Written Warning. The claimant contacted the Northern Ireland Health & Safety Executive and was vindicated by them in that the employer admitted that it was at fault and the disciplinary penalty was removed.

 

(2) It was the claimant's case that the subsequent incidents in March 2012, July 2014 and August 2014 were connected together, in that they were a series of acts whereby the employer, in the form of his supervisor, attempted to get rid of him because he had raised the issues in July 2011. The claimant made the case that these attempts culminated with the allegations which led to his dismissal in February 2015.

 

The law

 

5. In the case of Selkent Bus Company v Moore 1996 ICR 836 it was stated as follows:-

 

"Whenever the discretion to grant 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 them exhaustively but the following are certainly relevant;

 

(a) The nature of the amendment; applications to amend are of many different kinds, ranging, on the one hand from 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 other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal has to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action .

 

(b) The applicability of statutory 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 an application. An application should not be refused solely because there has been a delay in making it. There are no time-limits laid down in the Rules for the making of amendments. The amendments can be made at any time before, at, or even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made; for example, the discovery of new facts or new information appearing from documents disclosed in discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result from adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision ."

6. Harvey states at Paragraph 311.3 of Part T:-

 

"A distinction may be drawn between -

 

(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 or arises out of the same facts as the original claim.

 

(3) Amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all ."

 

7. In British Coal v Keeble [1997] IRLR 336 the EAT suggested that a tribunal would be assisted by the factors mentioned in Section 33 of the Limitation Act 1980, which deals with the exercise of discretion by the courts in personal injury cases. This requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also take regard to all the circumstances of the case and in particular to:-

 

"(a) the length of and reasons for the delay;

 

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

 

(c) the extent to which the party sued had cooperated with any request for information;

 

(d) the promptness with which the plaintiff acted once her or she knew of the facts giving rise to the cause of action; and

 

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action ."

 

8. The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (as amended), state where relevant as follows:-

 

" Overriding objective

 

3. (1) The overriding objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals and chairmen to deal with cases justly.

 

(2) Dealing with a case justly includes, so far as practicable -

 

(a) ensuring that the parties are on an equal footing;

 

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

 

(c) ensuring that it is dealt with expeditiously and fairly; and

 

(d) saving expense.

 

(3) A tribunal or chairman shall seek to give effect to the overriding objective when it or he -

 

(a) exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2, 3, 4, 5 and 6; or

 

(b) interprets these Regulations or any rule in Schedules 1, 2, 3, 4, 5 and 6.

 

(4) The parties shall assist the tribunal or the chairman to further the overriding objective.

 

Hearings - General

 

"14(2) So far as it appears appropriate to do so, the chairman or tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by any statutory provision or rule of law relating to the admissibility of evidence in proceedings before the courts.

 

(3) The chairman or tribunal (as the case may be) shall make enquiries of persons appearing before him or it and of witnesses as he or it considers appropriate and shall otherwise conduct the hearing in such manner as he or it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings."

 

9. I made it clear to the respondent's representative that I would consider in detail the cases of Johnston v Manpower Direct (UK) Ltd [2015] UKEAT/0351 and Higgins v Home Office [2015] UKEAT/0296/14 in determining the extent to which I could identify claims on the claimant's behalf from the documents presented by him. The parties declined the opportunity to make specific submissions on those decisions.

 

10. The Johnston case concerned a disability discrimination claim which came before the Employment Appeal Tribunal The claimant had been unrepresented before the tribunal but had the benefit of legal representation before the Employment Appeal Tribunal An argument was then advanced in relation to the issue of reasonable adjustments. It was agreed that this had not been advanced before the tribunal and one of the arguments put forward on the claimant's behalf before the EAT was that it was incumbent on the tribunal to have raised this point. HH Judge Serota QC stated as follows:-

 

"It is never easy in adversarial proceedings to know how far an Employment Tribunal should go in assisting an unrepresented party or dealing with a point that neither party has raised. In cases where the point is an essential ingredient of a claim, for example, failure to consult in a redundancy case, it may be reasonably involved that an Employment Tribunal will offer assistance and take the point itself. But, in the particular case with which I am concerned, the point was neither so obvious nor so significant as to amount to an error of law of the Employment Tribunal failing to do so."

 

11. In essence, the issue is one of degree. It is inappropriate for an Employment Judge or tribunal to become to become an advocate for an unrepresented party. At the other extreme, it could be an error of law for a tribunal to ignore a clear case being made even if the claimant puts the wrong legal label on it.

 

12. In the Higgins case, HH Judge Serota QC dealt with a claim where the claimant was unrepresented before the tribunal but had the benefit of legal representation before the Employment Appeal Tribunal

 

13. This case involved an unrepresented claimant whose grounds of claim on her claim form were poorly drafted. The claimant had had a long history of mental illness. Her claim form was rejected by an Employment Judge and it was found by the EAT that this decision was incorrect.

 

14. HH Judge Serota QC endorsed guidance provided by Barling J in another case:-

 

"I also need to refer to the approach which should be taken under the overriding objective to litigants in person; in this regard I refer to the judgment of Barling J in Drysdale v Department of Transport (Maritime and Coastguard Agency) [2014] IRLR 892 -

 

'49. From the authorities to which Mrs Drysdale referred ... I derive the following general principles:

 

(1) It is a long-established and obviously desirable practice of courts generally, and employment tribunals in particular, that they will provide such assistance to litigants as may be appropriate in the formulation and presentation of their case.

 

(2) What level of assistance or intervention is 'appropriate' depends upon the circumstances of each particular case.

 

(3) Such circumstances are too numerous to list exhaustively, but are likely to include : whether the litigant is representing himself or is represented; if represented, whether the representative is legally qualified or not; and in any case, the apparent level of competence and understanding of the litigant and/or his representative.

 

(4) The appropriate level of assistance or intervention is constrained by the overriding requirement that the tribunal must at all times be, and be seen to be, impartial as between the parties, and that injustice to either side must be avoided.

 

(5) The determination of the appropriate level of assistance of intervention is properly a matter for the judgment of the tribunal hearing the case, and the creation of rigid obligations or rules of law in this regard is to be avoided, as much will depend on the tribunal's assessment and 'feel' for what is fair in all the circumstances of the specific case.

 

(6) There is, therefore, a wide margin of appreciation available to a tribunal in assessing such matters, and an appeal court will not normally interfere with the tribunal's exercise of its judgment in the absence of an act or omission on the part of the tribunal which no reasonable tribunal, properly directing itself on the basis of the overriding objective, would have done/omitted to do, and which amounts to unfair treatment of a litigant."

 

15. I have considered the evidence, both oral and documentary, together with the submissions of the parties and the legal principles and have decided that the claimant's application is granted for the principal reasons set out below. I have therefore decided the claim may be amended by way of re-labelling of the facts already pleaded and by way of particularisation of a claim already contained in the claim form. The re-labelling involves including a claim for unfair dismissal on grounds of the claimant having made protected disclosures, together with a claim for detriment on grounds of having made protected disclosures between 2014 and the date of dismissal in February 2015.

 

16. I am satisfied that it is appropriate for me to take account of the documents attached to the claimant's claim form as he refers to them in the claim form as forming the basis of his claim. I am also satisfied that it is appropriate for me to look at the document which is attached hereto to assess whether, in reality, the claimant's claim is a whistleblowing claim, albeit that he was not aware of such a legal claim prior to the Case Management Discussion.

 

17. The claimant was consistent in his submissions and evidence that he was treated badly by the employer on a series of occasions following his having raised health and safety matters in July 2011. It was his case that his supervisor 'had it in for him' because, after he contacted the Northern Ireland Health & Safety Executive, he was found to be in the right and the company was in the wrong. The claimant made the case to me that the dismissal was the culmination of a series of acts when he was treated badly because the company was attempting to get rid of him.

 

18. The claimant was clear that he did not allege that the actions connected to the 29 July 2011 incident (ie the disciplinary action and the sanction that was later rescinded) amounted to detrimental acts. His case was that it was only after that incident came to a conclusion that he was treated detrimentally by the employer on a series of occasions culminating with the dismissal.

 

19. The respondent's representative raised a concern that the claimant was not putting forward this case but that it was the tribunal that had suggested that whistleblowing might be the claim being made rather than a race discrimination claim.

 

20. I have considered the guidance provided by His Honour Judge Serota QC in the two cases of Higgins and Johnston and I am satisfied that it is clear from the face of the document that the thrust of the claimant's case is that he was treated badly and dismissed because he had raised health and safety concerns on an ongoing basis. The claimant does not need to know or identify the legal category of claim in circumstances where he is unrepresented and does not have English as his first language. I specifically reject the respondent's representative's contention that, as the claimant said that he received the help of a solicitor in drafting his appeal letter before he was dismissed, this meant that he should be judged by a higher standard on the attached document, as I accept that the claimant drafted it himself.

 

21. I also reject the contention that a tribunal should not look at documents attached to a claim form because this would mean that it is the tribunal seeking to extract a claim from a mass of documents. That may apply in other cases but it does not apply in this case where the claimant clearly set out the thrust of his case on one page.

 

Time-point

 

22. There is an issue as to whether or not the detrimental acts listed in the attached document which occurred in March 2012, July 2014, August 2014 and in 2015 prior to the dismissal amounted to a continuing act or whether they were separate acts with time-limits running from the date of each act. I decline to deal with any time-limit issue in this regard as this is a matter which can be more appropriately assessed by the tribunal hearing the full claim. It is open to that tribunal to find that the acts are connected in which case time runs from the date of the last act. It is also open to that tribunal to find that they are separate acts, in which case time would run from the date of each act and it would then be for the claimant to persuade that tribunal that it was not reasonably practicable for him to lodge his claim at an earlier stage.

 

23. Determining the time-point and whether the acts should be linked together to form a continuing act would involve a consideration of the whole case and is not apt for consideration at a PHR and I therefore decline to do so.

 

24. In addition, at the very least, the allegations set out in the attached document would constitute background evidence which the claimant could bring forward in order to show that his dismissal was unfair because it was on grounds of his having made a health and safety protected disclosure in 2011. This is another reason why this is not apt for determination at a PHR as there would not be a saving in time in relation to the evidence to be called.

 

25. It was put to the claimant that in 2005 he was sacked and obtained £1,000.00 compensation and his job was reinstated. The claimant candidly agreed that he was sacked, he went to a solicitor, a letter was sent to his employer and the employer offered the job back, together with compensation of £1,000.00. This evidence from the claimant in relation to seeking legal advice relates to any time-point issues and this can be looked at further by the tribunal hearing the case if relevant.

 

26. The claimant also provided some medical evidence in the form of a letter from the respondent's Occupational Health Doctor of 23 September 2011 in relation to his health difficulties at that point. Again, it is for the claimant to bring forward any medical evidence upon which he intends to rely in relation to any time-point connected to whether the detriments alleged between 2012 and 2015 were separate acts involving time-limit issues.

 

Summary

 

27. In summary, I amend the claim to re-label the claim as a claim for detriment on grounds of having made a protected disclosure together with a claim for automatic unfair dismissal due to having made a protected disclosure.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 25 August 2015, Belfast

 

 

Date decision recorded in register and issued to parties: