Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1736/16

 

 

CLAIMANT: Brian Drury

 

 

RESPONDENT: Equality Commission for Northern Ireland

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

 

(i) The allegations of unlawful victimisation contained in Paragraphs 2.7 and 2.8 of D1 are contained within the claim form and are within the statutory time-limit.

 

(ii) The allegations of unlawful victimisation contained in Paragraphs 2.1, 2.2 and 2.6 are not contained within the claim form and are made outside the statutory time-limit.

 

(iii) The statutory time-limit is not extended to enable the claims of unlawful victimisation in Paragraphs 2.1, 2.2 and 2.6 to proceed.

 

Constitution of Tribunal:

Vice President (sitting alone): Mr N Kelly

Appearances:

The claimant was represented by Ms R Best, Barrister-at-Law, instructed by Arthur Cox, Solicitors.

The respondent was represented by Mr G Grainger, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.

 

Relevant findings of fact

 

1. The claimant is an equality officer in the Equality Commission and has been employed by that organisation for approximately 14 years.

 

2. The claimant had had a troubled relationship with his employers. Between 2010 and 2011 he had pursued three separate formal grievances. None of those grievances had been upheld.

 

3. In 2011 he first brought industrial tribunal proceedings against his employer. Those proceedings were subsequently withdrawn.

 

4. It does not appear that working relationships improved at any stage thereafter.

 

5. The claimant works as a member of the Private and Third Sector Team ('PTS'). Mr Oakes is a manager of a different team, the Advisory Services Team ('AST'). Mr Oakes had previously been the claimant's line manager in a different post and there appears to have been a degree of tension between the two individuals. The source of that tension is not relevant to this pre-hearing review.

 

6. On 5 March 2015, the two teams met in a prearranged meeting. It did not go well. The claimant raised complaints against Mr Oakes and others under the respondent's ' Dignity at Work' policy. Mr Oakes raised similar complaints against the claimant.

 

7. The complaints were first investigated and considered by Mr Keith Brown, the Head of Corporate Services. The report compiled by Mr Brown is undated. However, it appears to have issued on or around 19 October 2015.

 

8. The complaints from the claimant about Mr Oakes were first set out in an e-mail of 6 March 2015 and then clarified in a further e-mail of 11 March 2015. They are set out in the report as:-

 

"Unreasonable and inappropriate bullying behaviour, causing professional insult to Mr Drury through Mr Oakes' approach to resolving a disagreement over the interpretation of a training protocol; specifically:

 

-        the accuracy of Mr Oakes' description of the protocol and its operations;

 

-        exploiting his position of authority in an attempt to undermine Mr Drury's attempts at clarification;

 

-        subjecting to Mr Drury to humiliation and ridicule and inflicting personal trauma."

 

There appears to have been a dispute at this meeting between the claimant and Mr Oakes about the interpretation of a training protocol. Other employees were involved. Words were exchanged. However, elevating this matter to ' personal trauma' seems somewhat overblown.

 

9. Mr Brown did not uphold the complaints brought by the claimant against Mr Oakes. He concluded that Mr Oakes' interpretation of the training protocol had not been ' ludicrous' or ' ridiculous', ' grossly inaccurate' or ' bullying behaviour'. He concluded that the claimant had significantly contributed to the events that had occurred.

 

10. Mr Oakes, for his part, alleged that the claimant had issued several informal and formal grievances against him, all of which had been unsubstantiated. They continued for some five years after the first grievance had been raised. He believed that ' enough was enough'. Mr Brown concluded that the latest allegations had added to the long list of previous allegations that had not been upheld. He concluded that the allegations against Mr Oakes had been ' persistent, serious and potentially damaging'. He stated that:-

 

"A pattern appears to have emerged under which Mr Drury raises allegations against Mr Oakes; following a finding, he states that despite his concerns in relation to the finding, he wishes to 'move on', however some time later in the context of the next set of grievances, aspects of the previous grievance are re-stated to the detriment of those previously addressing the matter."

 

11. Mr Brown concluded that Mr Oakes' complaints about the claimant should be upheld. He stated:-

 

"I find that there is evidence to support Mr Oakes' allegations against Mr Drury; that there is a pattern of persistent and unsubstantiated allegations against him. I consider that disciplinary action is warranted and that the Human Resources manager should initiate action under Paragraph 3.26 of the Dignity at Work procedures."

 

Mr Brown also recommended that the claimant should be transferred; not as a punishment, but to protect Mr Oakes from further bullying in accordance with the procedures of the respondent organisation.

 

12. The claimant had also issued complaints against Ms Jacqui McKee. Those were similarly investigated by Mr Brown and were not upheld.

 

13. The claimant had also issued complaints against Ms Eileen Lavery. Those complaints were similarly investigated by Mr Brown and were not upheld.

 

14. The claimant appealed against the conclusions reached by Mr Brown. Those appeals were heard by Dr Evelyn Collins CBE, Chief Executive of the respondent organisation. She issued a report on 7 April 2016 in which she did not uphold any of the appeals brought by the claimant. She concluded that Mr Brown's investigation had been thorough, fair and clear and that his conclusions had been correctly reached on the evidence before him. The report was sent to the claimant by letter dated 7 April 2016.

 

15. On 8 April 2016, a disciplinary letter was issued by the Human Resources manager to the claimant. That set out the following disciplinary charges:-

 

" ... That there is a pattern of persistent and unsubstantiated allegations against Mr Paul Oakes.

 

Such alleged misconduct being a breach of the Commission's disciplinary policy and procedure, has potential of being considered by the Commission as up to and including major misconduct."

 

The claimant was given an opportunity to provide a detailed written submission in relation to those charges. That letter made it clear that the disciplinary officer was Dr Evelyn Collins CBE. The claimant had been given the outcome of the DAW appeal heard by Dr Evelyn Collins CBE on the previous day and has therefore known from 8 April 2016 that Dr Evelyn Collins CBE would hear the disciplinary charge having determined the DAW appeal.

 

16. A disciplinary hearing took place on 4 May 2016. The claimant was accompanied by a work colleague.

 

17. At that meeting the claimant raised concerns about the procedure in the Dignity at Work complaints and also about Dr Evelyn Collins CBE's role as a disciplinary officer since she had heard his appeals under the Dignity at Work complaints.

 

The claimant had therefore been fully aware of this issue but had not raised it as a claim of victimisation or of direct discrimination in his claim form almost three months later on 28 July 2016.

 

18. A 30 page typed disciplinary report issued on 2 June 2016.

 

19. The report referred to the claimant's grievances and complaints from 2010 up to 2015. Dr Evelyn Collins CBE concluded that:-

 

"There is evidence of a pattern of unsubstantiated complaints made by Mr Drury against Mr Oakes over a period of five years and that this amounts to bullying and harassment as defined in the Commission's Dignity at Work policy. I also conclude that this constitutes major misconduct under the Commission's disciplinary policy and procedures."

 

20. She further stated:-

 

"There are four reasons for my conclusion. These are:

 

-        the number and nature of the formal complaints raised;

 

-        the outcomes of the complaints and Mr Drury's response to them;

 

-        Mr Drury's behaviour through the period in addition to the issues about which he complains; and

 

-        the impact on Mr Oakes of the complaints raised."

 

21. She stated that it was significant that four separate sets of complaints had been raised against Mr Oakes over the period of five years. The first two complaints had been under the grievance procedures and the last two complaints had been under the Dignity at Work policy. Each had encompassed a number of allegations.

 

22. Dr Evelyn Collins CBE determined that the claimant should receive a first written warning which would last for a period of 12 months, rather than the three years provided in the disciplinary policy, to take into account the fact that this was Mr Drury's first disciplinary offence. The transfer which had been recommended by Mr Brown was to be dealt with separately.

 

23. The claimant lodged an appeal against this disciplinary finding. That appeal was heard by Dr Michael Wardlow. The disciplinary appeal was held on 5 July 2016. A report issued to the claimant dismissing the appeal on 21 July 2016.

 

24. The report issued by Dr Michael Wardlow was again a comprehensive document of some 13 pages. He recorded that the claimant had listed five grounds of appeal in an e-mail dated 21 June 2016. These were:-

 

"(1) Responsibility and proportionality

 

(2) Factual errors

 

(3) Reasonable adherence to procedural steps

 

(4) Victimisation on grounds of disability

 

(5) Direct discrimination on grounds of disability"

 

25. Dr Michael Wardlow states that he made it clear that the appeal was not addressing the DAW process but was restricted to the decision made by Dr Evelyn Collins CBE in her role as disciplinary officer. While some issues were linked, the nature of the appeal meant that the appeal decision was separate. Dr Michael Wardlow did not uphold any of the grounds of appeal.

 

26. On 28 July 2016, the claimant presented the second claim (the present proceedings) to the industrial tribunal.

 

27. At a Case Management Discussion on 19 December 2016, the claimant had produced a list of acts or incidents which were supposed to be a list of the incidents relevant to the claim of unlawful victimisation. The respondent alleged that the acts listed at Paragraphs 2.1, 2.2, 2.6, 2.7 and 2.8 were outside the scope of the claim form. The respondent further alleged that the acts listed at Paragraph 2.1 and 2.2 were outside the statutory time-limit even if they were within the scope of the claim form.

 

A pre-hearing review was listed to determine specified issues.

 

28. That list of issues was apparently agreed by the parties and contains eight separate paragraphs. Those paragraphs represent a somewhat tortured exercise in drafting. The eighth issue is no longer relevant since the respondent accepts that the claimant had been, at the relevant times, disabled for the purposes of the 1995 Act.

 

29. The issues might perhaps be better drafted as:-

 

"Were the acts listed in Paragraph 2.1, Paragraph 2.2, Paragraph 2.6, Paragraph 2.7 or Paragraph 2.8 within the scope of the claim form and within the statutory time-limit and, if not, should an amendment to the claim form be allowed to include all or any of those acts (taking into account the statutory time-limit where appropriate)?

 

Relevant law

 

30. The leading case in relation to amendments to tribunal claims is Selkent Bus Company Ltd v Moore [1996] ICR 836. In that case, Mummery J stated that 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'.

 

31. The Selkent principles were listed in that judgment as:-

 

"(a) The nature of the amendment. The amendment could range from a simple re-labelling exercise, the addition of some factual details or it could be an entirely new claim."

 

Mummery J stated:-

 

"The tribunal have 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 time-limits. If a new complaint or cause of action is proposed to be added by way of amendment it will be essential for the tribunal to consider whether that complaint is made out of time and, if so, whether time should be extended.

 

(c) The timing and manner of the application. Delay in making an application to amend is a discretionary factor. It is relevant to consider whether the application to amend was not made earlier and why it is now being made. The paramount consideration is the relative injustice and hardship involved in refusing or granting an amendment."




Decision

 

32. In considering those issues, it was important for the tribunal to remember that the claimant is an experienced employee of the respondent organisation. While not legally qualified, he had been experienced in employment law relating to discrimination and had actively pursued several grievances, complaints and one previous tribunal application. He had been well aware of the need to be clear about the nature of his claims and equally well aware of the statutory time-limits.

 

33. Turning to the first issue, ie whether or not Paragraphs 2.1, 2.2, 2.6, 2.7 and 2.8 of ' DE1' are within the scope of the claim, the relevant acts, which are subject to this pre-hearing review, are alleged acts of victimisation contrary to the 1995 Act. Those acts are as follows:-

 

"(2.1) ... the investigation by the respondent of the claimant's DAW complaint.

 

(2.2) ... the findings of the respondent in relation to the DAW complaint, whereby disciplinary action was recommended.

 

(2.6) The fact that Dr Collins heard both the DAW appeal and the disciplinary hearing.

 

(2.7) The decision of Dr Collins in the disciplinary hearing imposing a penalty.

 

(2.8) ... the decision of Mr Wardlow on appeal upholding that disciplinary decision."

 

34. The claim form contains a detailed, and presumably careful, description of the claim at Paragraph 7.4. It is approximately three typewritten pages. It identifies a claim of direct discrimination and a claim of victimisation, both contrary to the 1995 Act. As indicated above, this pre-hearing review is focused solely on the claim of alleged victimisation.

 

35. The claimant's complaints and grievances had been well rehearsed during both the DAW complaint and the disciplinary process. The claimant had been an experienced employee of the Equality Commission. He completed a claim form distinguishing between direct discrimination and victimisation. He can be presumed to have known what he wished to say by way of a claim. This is not the standard case where a claim form has been completed by an unrepresented and unadvised litigant. The claimant was a specialist in the area of employment equality law and its enforcement. It is also important for the tribunal to remember that in a statutory tribunal the tribunal's jurisdiction is limited to matters within its statutory jurisdiction and, importantly, it is limited solely to matters which are properly raised before it by way of a claim. A tribunal cannot function properly and a respondent cannot properly respond to a claim, if the claimant is to be allowed to expand his claim at will.

 

36. The claim form identifies a single alleged act of discrimination in Paragraph 7.4. That single alleged act of discrimination is clearly the imposition of the disciplinary penalty, ie the written warning and also the transfer which the claimant regards as a disciplinary penalty although that is disputed by the respondent. It is plain that the claim form refers only to a single act of discrimination because it says so in plain terms. It states:-

 

" The act of discrimination occurred on Thursday June 2 ^nd and I became aware of it by letter the following on Friday June 3 ^rd." [Tribunal's emphasis]

 

The claim form then goes on to describe at Paragraph 7.4 the details of what the claimant regards as disciplinary penalty. The claim form again makes it plain that the claim form relates to a single act of alleged discrimination (whether described as direct discrimination or as victimisation, contrary to the 1995 Act) when it states:-

 

" The action followed a finding that I breached the Commission's Dignity at Work policy and bullied a manager in my Department." [Tribunal's emphasis]

 

37. After setting the scene in the first part of Paragraph 7.4, the claim form continues to describe, in a specific section of 7.4, what it describes as:-

 

"Victimisation on grounds of disability; ... ."

 

In that section the claim form again refers to a single action that it alleges to be victimisation contrary to the 1995 Act. It states:-

 

"I believe that the action constitutes a clear act of victimisation on grounds of disability ... ." [Tribunal's emphasis]

 

The claimant alleges that the finding of major misconduct which gave rise to ' the action' (ie the disciplinary penalty) was based on three formal grievances between 2010 and 2011 which the claimant regards as protected acts.

 

38. The next part of Paragraph 7.4 sets out some of the history of the complaints lodged by the claimant in 2009 and 2010. It does not deal with any of the complaints or grievances raised by the claimant thereafter.

 

39. The next part of Paragraph 7.4 is headed:-

 

"Direct disability discrimination"

 

That section at Paragraph 7.4 refers to ' my treatment'. Given the earlier parts of Paragraph 7.4 where the allegation of discrimination relates to what the claimant regards as the disciplinary penalty, the words ' my treatment' can only be read as referring to that disciplinary penalty. In any event, the allegation of direct disability discrimination is not relevant to this pre-hearing review.

 

40. The first matter is the alleged action raised in Paragraph 2.1 of D1. That refers to the investigation by the respondent of the claimant's Dignity at Work complaint. That appears nowhere in the claim form as an alleged act of unlawful victimisation.

 

41. The second matter is that raised in Paragraph 2.2 of D1. That is the findings of the Dignity at Work complaint which recommended disciplinary action. Again that appears nowhere in the claim form as a claim of victimisation. The claim of victimisation relates to the written warning and the transfer; nothing else.

 

42. The third matter is that raised in Paragraph 2.6 of D1. That is the fact that Dr Evelyn Collins CBE heard both the Dignity at Work appeal and the disciplinary hearing. Again that is not raised in the claim form as an alleged act of victimisation, contrary to the 1995 Act. The claimant had already complained about this. If he had intended to raise it as an alleged act of victimisation, he would have done so.

 

43. The fourth matter is that raised at Paragraph 2.7 of D1. That is the decision of Dr Evelyn Collins CBE on the disciplinary hearing. It is clear that the alleged act of victimisation is precisely the decision on the disciplinary hearing. The allegation is that that decision in the disciplinary hearing was an act of victimisation based on three protected acts in 2010 and 2011. It would therefore appear that Paragraph 2.7 of D1 is in the claim form and the question raised in the pre-hearing review must be answered in the affirmative. It is in the claim form.

 

44. The fifth matter is that raised at Paragraph 2.8 of D1. That is the decision of Dr Michael Wardlow on the disciplinary appeal. Again, the claim form raises as an alleged act of discrimination precisely the outcome of the disciplinary appeal. I therefore conclude that that is a matter within the claim form.

 

45. The fourth and fifth matters; ie Paragraphs 2.7 and 2.8 of D1, are also within the statutory time-limit.

 

46. Therefore, the conclusion is that those acts alleged in Paragraphs 2.1, 2.2 and 2.6 are not within the claim form. The next issue is whether or not an amendment should be granted to allow those matters to be raised at this stage, taking into account time-limits where appropriate.

 

47. The claimant has not put forward any reason for his failure to include the matters, Paragraphs 2.1 2.2 and 2.6, in the claim form as originally drafted. It is clear that the claimant is an educated and articulated man with a strong sense of grievance and considerable experience and expertise in the area of employment discrimination. It is difficult for the tribunal to understand why, if the claimant had intended, as he now states, to include those matters as claims of alleged victimisation, he did not do so in the claim form, which had obviously been carefully prepared. It is clear that the claimant's central claim is that he had been unlawfully discriminated against, both directly and as an act of victimisation by the penalty imposed on him in relation to the written warning and the penalty which he regards as having been imposed upon him in relation to the transfer. Those matters, ie the central claim, will still continue to hearing without any need for an amendment to include the further allegations of unlawful victimisation.

 

48. While it is important to consider all the circumstances of any case as part of the balancing exercise advocated in Selkent, the first issue which must be considered is the nature of the amendment.

 

The matters contained within Paragraphs 2.1, 2.2 and 2.6 of D1 are allegations of victimisation in:-

 

(i) the investigation by the respondent of the claimant's DAW complaint;

 

(ii) the findings of the respondent in relation to the DAW complaint whereby disciplinary action was recommended; and

 

(iii) the fact that Dr Collins heard both the DAW appeal and the disciplinary hearing.

 

49. The victimisation alleged at (i) is a new head of claim and is additional to that included in the claim form. It alleges that an additional act of unlawful victimisation had occurred.

 

The victimisation alleged at (ii) is again a new type of claim to that included in the claim form. This is again an additional allegation of unlawful victimisation. The claim form alleged victimisation only in relation to the disciplinary penalty or perceived penalty; not in relation to anything else.

 

The victimisation alleged at (iii) above is again a new type of claim not included in the claim form. This was a fact known to the claimant for some time. He had known of the appointment of Dr Collins on 8 April 1986. Dr Collins had already issued the decision on the DAW appeal on 7 April 1986. He did not object at the time but he did object during the disciplinary hearing on 4 May 2016. No mention of this fact as an alleged act of victimisation was made then or in his claim form.

 

50. The tribunal also has to consider the timing and nature of the application and the applicability of time-limits. Time-limits are relevant where, as in the present case, the proposed amendments are to include new claims.

 

51. In a Case Management Discussion on 17 November 2016, more than three months after the lodgement of the tribunal claim on 28 July 2016, it appeared that the claimant was going to allege that acts of alleged victimisation had occurred for which he sought a remedy rather than acts which were merely of a contextual or evidential significance.

 

The claimant was ordered to produce a list of such acts. That was the list at D1. That led to the current pre-hearing review.

 

52. All three allegations of alleged victimisation are out of time. There has been no rational excuse or explanation for the lateness of the amendment application. The claimant, as indicated above, was experienced in this area of law. He had had ready access to advice from his then trade union. He had failed to clarify what he states had always been his claim for almost four months after the claim was lodged.

 

53. In summary, the claim form is clear. The allegations of direct discrimination and victimisation relate to the disciplinary penalty or perceived penalty. The proposed amendments to include the allegations of unlawful victimisation contained in Paragraphs 2.1, 2.2 and 2.6 of D1 are new claims and not simply re-labelling of existing claims. The application for amendment has been made at a very late stage and no reason or excuse has been put forward for that delay. The central complaint, ie the complaint about the disciplinary penalty or perceived penalty, will proceed without any amendment. If an amendment were granted it would add costs and difficulty to this hearing and would increase legal costs. After scrutinising the papers and having heard the claimant, my conclusion is that the claimant now wishes to expand his tribunal claim to re-open his recent DAW complaint and that that, if permitted, would result in a much longer hearing and many more witnesses.

 

54. The tribunal therefore concludes that, balancing all those factors, amendments are not allowed to include these claims.

 

55. The claim will therefore proceed to hearing as defined in the statement of issues summarised in the claim form marked D1. That already has deleted Paragraph 1.1. Paragraphs 2.1, 2.2 and 2.6 are also now deleted.

 

56. A Case Management Discussion will now be arranged in the early future to issue final directions for the hearing of this matter.

 

 

 

 

 

 

 

Vice President:

 

 

Date and place of hearing: 15 March 2017, at Belfast

 

 

Date decision recorded in register and issued to parties: