Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  2395/15

 

 

 

CLAIMANT:                          Ram Prasad Sharma

 

 

RESPONDENTS:               1. Andras House Limited

                                                2. Brian Thornton

 

 

 

RULING ON A PRE-HEARING REVIEW

The ruling of the tribunal is

 

(1)          The claimant’s application to amend his claim to include a claim of race discrimination is refused.

 

(2)          The claimant’s claim to amend his claim form to include a claim of discrimination is permitted, in accordance with the directions set out in paragraph 14 of this ruling.

 

 

Constitution of Tribunal:

Employment Judge (sitting alone):       Employment Judge McCaffrey              

                       

Appearances:

The claimant appeared in person and represented himself.

The respondents were represented by Ms Lynn Sheridan of Peninsula Business Services Ltd.

 

THE ISSUE

 

1.         The issue for me to consider was whether the claimant’s claim should be amended to include claims of discrimination on the grounds of race and religious belief.  The claimant is employed by the first-named respondent, referred to in this ruling as “the respondent.”  The parties agreed that the correct name of the first-named respondent is “Andras House Limited” and I order that the title of the first-named respondent shall be amended accordingly.

 

2.         The claimant had lodged a claim form received in the Office of the Industrial Tribunals and the Fair Employment Tribunal on 9 October 2015.  In that claim form he alleged that he was always being called for pointless disciplinary meetings, that he was being “mentally harassed” by letters regarding disciplinary meetings, that he was not being paid the required amount of wages for his job as a sous-chef.  He believed that he had not been paid the appropriate amount for his holidays and that he was refused holiday to attend the funeral of his grandmother.  He alleged that he had not been paid his full holiday wages.  Subsequently, and just before a Case Management Discussion on 27 November 2015, the claimant sent in a supplementary letter alleging that he had suffered discrimination on grounds of his race and religious practice.  He specifically referred to the funeral service for his grandmother; according to him, Hindu religious practice requires the first son of a daughter must attend the funeral service if such a person exists.  The claimant was the first grandson and went to his grandmother’s funeral in Colorado, USA, although this was an unauthorised absence from work.

 

3.         There was a dispute as to the exact information the claimant had given to the respondent regarding his grandmother’s health.  The respondent’s representative indicated that the Executive Chef and a representative from Human Resources had met the claimant when he had requested holidays on 13 March and been refused because of pressure of work.  The claimant then indicated that his grandmother died within a couple of days.  He went to work the day after her death, advised the Executive Chef of his grandmother’s death, said that he would have to go to the funeral and indeed left for America the next day.  He was away for two weeks.  The respondent disputed that they had been told in advance of the claimant’s grandmother’s death or of the religious practice requiring the claimant’s attendance at the funeral.  The claimant was unhappy that he had been called to a disciplinary meeting in relation to this unauthorised absence in April 2015.  The disciplinary did not proceed at that time because the claimant had raised a grievance and subsequently did not attend some planned disciplinary meetings. 

 

4.         Eventually there was a disciplinary meeting in October 2015 at which the allegations against the claimant included unauthorised absence without authorisation from 16 March 2015 for a period of two weeks; using out of date filling for sandwiches; failure to contact the Executive Head Chef to advise whether or not the claimant was coming to work; failing to turn up for shift on 6 June 2015 resulting in a restaurant having to be closed; being disrespectful to the restaurant manager on 31 May 2015; failure to turn up for shifts on 21, 22, 23 and 24 May 2015.  As a result of these disciplinary proceedings the claimant was given a final written warning in October 2015. 

 

5.         The claimant was invited at the hearing to clarify exactly why he believed he had suffered religious discrimination and race discrimination.  He indicated that he been treated differently in terms of pay and that he had not been promoted whereas others (he specifically named Graham Burns the Executive Head Chef who had been a sous-chef with him and Paul (he was unsure of Paul’s surname) who he said was working on the same job as the claimant) were treated more favourably.

 

6.         The respondent indicated by way of contention that the only Paul who had worked for the respondent was a chef who did a completely different job from the claimant and was paid at a different rate because his duties were different from those of the claimant.  It was also noted that the claimant had been subjected to disciplinary procedures for a range of different matters none of which according to the respondent were in any way to do with his race or religious background.  It is also noted that the alleged discrimination in relation to the claimant’s religious belief and relating to his grandmother’s death had occurred in March 2015.  The respondent queried that if this was such an important issue to the claimant, his claim should have been raised sooner and should have been raised as part of his claim in October 2015.  It was also noted that the claimant had raised a number of grievances in the interim but had not produced his grandmother’s death certificate until this hearing.  It was suggested that had he raised this issue sooner the matter might have been resolved promptly and to everyone’s satisfaction.

 

7.         In considering this matter I am conscious of the principles in relation to the amendment of claims and responses.  The power to amend claims and responses falls under Rule 10 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and specifically Rule 10(1) and Rule 10(2)(p).

 

8.         The leading case in relation to amendment of claims is Selkent Bus Company Ltd v Moore [1996] IRLR 661 where Mummery J pointed out that the power to amend is a judicial discretion to be exercised “in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.”  In general terms, the tribunal must take account of the nature of the application itself i.e. whether it is minor or substantial.  Secondly, whether the amendment would have the effect of introducing a new claim by the claimant, in which case the tribunal must consider whether the claim has been brought in time or whether time should be extended under the appropriate statutory provision to allow the claim to be brought.  Thirdly, the tribunal must have regard to the timing and manner of the application.  The tribunal must consider amongst other things why the amendment application was not made earlier and why it is now being made: for example, that it was because of the discovery of new facts or new information appearing from documents disclosed on discovery.  In each case, as Mummery J emphasised in Selkent the paramount considerations are the relative injustice and hardship to the parties involved in refusing or granting an amendment.

 

9.         Harvey on Industrial Relations and Employment Law at Division P1 Practice and Procedure considers the distinctions between types of amendments (see para 311.04).  There are those amendments that are merely designed to alter the basis of an existing claim but without purporting to raise a new, distinct head of complaint.  Secondly, there are 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, otherwise known as relabelling.  Thirdly, there are those amendments which can either substitute a wholly new claim or raise a further action which is not connected to the original claim at all.

 

10.      In this case its seems to me that the amendment sought by the claimant is a relabelling: he is seeking to rely on the same facts as originally pleaded, but argues that these allegations indicated the claimant was unlawfully discriminated against on grounds of his race or religion.

 

11.      In this case and according to Harvey, the question of the time limit for bringing the claim is not generally an issue, given that the claimant is seeking to amend an existing, timeous claim.

 

12.      Mrs Sheridan did not argue that there would be undue hardship to the respondent if the amendment was granted.  She relied very much on the argument that it was not just and equitable to allow the amendment, which seems to me to conflate the issues of the time limit and the proposed amendment.  On the basis of what the claimant has told me, I do not see any clear argument or contentions produced by him either in his submissions to the tribunal or in his claim form, which would justify an amendment of the claim to include a claim of race discrimination.  The claimant has not satisfied me that it is appropriate to amend the claim to include a new claim of this kind, and so the application to amend the claim to include a claim of race discrimination is refused.

 

13.      In relation to the question of discrimination on the grounds of religious belief, there was a conflict of evidence apparent in the contentions put forward by the claimant and the respondent in relation to these matters.  The claimant alleged that he had told the respondent’s Executive Chef that his grandmother had died and that he needs to go to Colorado for her funeral as her eldest grandson in accordance with Hindu tradition.  The respondent disputed that the claimant had actually done this in advance of his taking unauthorised leave.  This is not a matter on which I can make a finding at this time; it is an issue for the full hearing.  The claimant had however referred to the funeral specifically in his claim form, which he prepared himself.  I am however of the view that it would be appropriate to amend the claim form to allow the claimant to bring a claim of discrimination on grounds of religious belief so that these issues can be dealt with in full before the Industrial Tribunal.  It does not seem to me that there would be undue prejudice to the respondent in allowing the issue to be dealt with by the tribunal and this was not argued by Mrs Sheridan.  I have however pointed out to the claimant that in all cases of discrimination, it is for the claimant to prove his case and to satisfy the tribunal that any less favourable treatment he received was on grounds of his religious belief.  I also pointed out to the claimant that if the respondent could demonstrate to the tribunal that he had been treated in a particular way for another reason, unrelated to the alleged unlawful discrimination, then it was unlikely that the claimant would succeed.  The claimant had indicated that he was seeking advice from the Equality Commission, and I believe it would be prudent for the claimant to seek advice in relation to the merits of his claim. 

 

14.      The claimant’s application to amend his claim to include a claim of discrimination on grounds of religious belief is therefore granted and the claim form shall be amended to include the content of the claimant’s letter of 22 November 2015.  If the respondent should wish to lodge a supplementary response, it shall lodge that response within 28 days of the date of this decision.  I direct that the case shall then be relisted for a case management discussion to deal with issues of timetabling and preparation of the case for hearing.   

 

 

 

 

Employment Judge:

 

Date and place of hearing:  20 January 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: