Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2117/16

 

 

CLAIMANT: Mark Bradley

 

 

RESPONDENT: Dawnfresh Seafoods Limited

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is as follows:-

 

(i) The claimant's application for leave to amend his claim to include a claim of protected interest disclosure, pursuant to Article 134(3A) of the Employment Rights (Northern Ireland) Order 1996 in accordance with the proposed draft amendments lodged with the Office of the Tribunals in a letter dated 5 January 2017 is granted and the said claim is so amended.

 

(ii) The respondent, if it wishes to present an amended response to the claimant's claim, so amended, is ordered to do so within 14 days from the date this decision is issued to the parties.

 

(iii) As a consequence of the tribunal's said decision, the tribunal has made various case-management directions/orders, by consent, as set out in Paragraph 4. of this decision.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Drennan QC

Appearances:

The claimant was represented by Mr E Foster, Barrister-at-Law, instructed by John Fahy & Company, Solicitors.

The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by DLA Piper, Solicitors.

 

Reasons

 

1.1 The claimant presented a claim of unfair dismissal to the Office of the Tribunals on 22 September 2016. The respondent presented a response to the Office of the Tribunals on 2 November 2016, denying liability for the claimant's said claim.

 

In a Case Management Discussion on 21 December 2016, as set out in the Record of Proceedings dated 22 December 2016, the respondent's representative indicated to the tribunal that the claimant wished to amend his claim to include a protected disclosure claim, in addition to his claim of 'ordinary' unfair dismissal. As a consequence, this pre-hearing review was arranged and the claimant was required to set out the precise nature of the amendment, the subject-matter of his application, in writing by no later 5 January 2017.

 

1.2 In a letter dated 5 January 2017, the claimant's representative stated that the claimant wished to apply to the tribunal to amend his claim to include a protected disclosure claim, pursuant to Article 67, 70 and 134A of the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order'). At the commencement of this hearing, the claimant's representative accepted that the said references should have been to Article 67A, 70B and 134A of the 1996 Order. In addition, the claimant's representative also agreed that in relation to the claimant's application to include a claim of protected disclosure he was seeking to make an amendment, pursuant to Article 134A of the 1996 Order, and he was no longer making a claim pursuant to Article 70B of the 1996 Order.

 

1.3 Article 70B of the 1996 Order provides:-

 

"(1) A worker has the right not to be subjected to any detriment by any act or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

 

(2) ... this Article does not apply where -

 

...

 

(b) the detriment in question amounts to dismissal ... ."

 

Article 134A of the 1996 Order provides:-

 

"An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one the principal reason) for the dismissal is that the employee made a protected disclosure."

 

1.4 It is apparent from the decision of the Employment Appeal Tribunal in the case of Makauskiene v Rentokil Initial Facilities Services (UK) Ltd [2014] UKEAT/0503/13 that where there is an application for leave to amend a claim to include a claim pursuant to Article 70B and Article 134A of the 1996 Order, each application has to be considered separately and different issues may require to be taken into account by the tribunal, resulting in different conclusions. In the event, since the claimant's representative no longer sought to make an application for leave to amend the claimant's claim to include a claim of detriment, pursuant to Article 70B, I was only required to consider his application for leave to amend to include his claim for automatic unfair dismissal, pursuant to Article 134A of the 1996 Order.

 

1.5 In the letter dated 5 January 2017, now setting out his application, as now amended, to include a protected disclosure claim, pursuant to Article 134 of the 1996 Order, the claimant's representative stated:-

 

"The claimant wishes to include a claim ... of dismissal on the grounds of having made a protected disclosure to his employer for which he held a reasonable belief. The claimant has already made the following reference in his claim form, at Paragraph 10:

 

'I would like to inform the tribunal that there has been instances between me and AB in the past in which I received text messages from Scott Wilson threatening to assault me and I have reported this to HR and also to their head office in Scotland and the PSNI as well as instances of AB stealing company property. However these complaints I raised were never investigated by the company and were swept under the carpet in my opinion.'

 

And at Paragraph 11 -

 

' ... however I continued to do so during suspension period as I had nowhere else to stay and all my possessions which I owned were on site and did not feel comfortable leaving same here due to previous instances of theft by my site manager, AB, which I raised with HR staff and which were never actioned'.

 

The claimant had informed Ms CD, HR Adviser for the respondent of the practices that he reasonably believed had taken place in the workplace, and during hours of employment, by AB, including:

 

(i) the claimant and two other employees carrying out work at AB's house during their hours of employment with the respondent;

 

(ii) materials, namely stones being ordered for AB's house, with the respondent being invoiced;

 

(iii) equipment being purchased by the respondent but being retained by AB;

 

(iv) a vehicle being purchased by the respondent, for use by staff on-call but only being used by AB and for personal use;

 

(v) contractors carrying out work at a property owned by AB but the invoice for the work being charged to the respondent.

 

The claimant also informed Mr EP, Production Manager, for the respondent of the practices of AB.

 

The details of the original claim form present the case as one of unfair dismissal and this remains the position but further or alternatively, the claimant believes that he has suffered ... unfair dismissal on the grounds of having made such disclosures to his employer, for which he held a reasonable belief."

 

In addition to the above matters, the claimant's representative also drew the tribunal's attention, in support of the claimant's said application, to the following matter which is also set out in the claimant's claim form, on the penultimate page of his statement:-

 

" ... it strengthens my position even more in that I believe that I did not carry out this act and the company have framed me for doing so."

 

As stated previously, the respondent denies liability for the claimant's said claims. At this hearing, it is not for me to determine these allegations set out in the claimant's claim form. In these circumstances, for the purposes of this decision, I have anonymised the names of all persons referred to in the above extracts from the claimant's claim form

 

2. In determining the issues, as set out in the previous paragraphs, the following legal principles, in my judgment, are relevant to same, as set out in the following sub-paragraphs.

 

2.1 As stated in Blackstone's Employment Law Practice at Paragraphs 6.37/6.38 the general position in relation to the issue of amendments in Employment Tribunal is set out:-

 

"6.37

 

(1) Both the claimant and respondent can amend their pleadings and in deciding whether to grant any such amendments the tribunal should attempt to do justice between the parties.

 

(2) This amendment can include addition of new claim, in limited circumstances, even where the time-limit for the new claim has expired.

 

...

 

(4) where amendment leads to an adjournment by the hearing, the party at fault will frequently have to pay the costs incurred.

 

6.38 Selkent principles

 

The leading authority in Selkent Bus Co Ltd v Moore [1996] ICR 836. The EAT there stated that, when faced with an application to amend, a tribunal's discretion should be exercised in a way which is consistent with the requirements of 'relevance, reason, justice and fairness consisted in all judicial discretions ... ."

 

2.2 In Harvey on Industrial Relations and Employment Law, Volume 4, Section P1, it has been helpfully stated:-

 

"311 Employment Tribunals have always had a general discretion to grant leave to amend the claim.

 

...

 

The power is, as Mummery J pointed out in Selkent Bus Co  v  Moore (in the course of a detailed review of the practice and procedure relating to applications to amend), a judicial discretion to be exercised 'in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent all judicial discretions'. Applications to amend may cover a wide range of matters. Some may be minor, such as the correct of clerical and typing errors or the addition or deletion of factual details of existing allegations, whereas others may be substantial involving new factual allegations which change the basis of the claim, or the additional of an entirely new claim or cause of action, or the additional substitution of respondents. There is no time-limit for making an application to amend, and it may be made at any time up and including the date of the substantive hearing (although, as will be seen, the longer delay in making the application of a substantial nature, the greater the scope for it being rejected). Most applications are however made in advance of the hearing and are dealt with by an Employment Judge at a preliminary hearing.

 

311.01 The way in which the discretion will be exercised will, as indicated by Mummery J in the Selkent case, largely be governed by the nature of the application itself. If it is manifestly hopeless, it may be refused outright, without any reference to the respondent. If the application is not sufficiently substantial or controversial to justify seeking representations from the respondent, it may be granted ex parte, although in this situation, if the other side subsequently objects, the tribunal should consider the objections and decide whether to affirm, rescind or vary the order which has been made. If, however, the application to amend is arguable and substantial, and could reasonably be opposed, the correct procedure is for a tribunal to ask the other side whether it consents or objects to the amendment, and if it objects, to state the grounds of objection. A decision will then be made after hearing both sides. Before making that decision, however, the tribunal must take account of all the circumstances, and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Although an oral hearing is not required to determine every application to amend, it will normally be necessary, where the refusal of the amendment would mean that the claimant's claim will certainly fail, where the application for the amendment is contested, and where the application requires close examination of all the circumstances before a decision can be made as to whether to grant or refuse the application ( Smith v Gwent District Health Authority [1996] ICR 1044 at 1050, EAT)."

 

311.04 A distinction may be drawn between (i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint; (ii) amendments which add or substitute a new cause of action but which is linked to, or arises out of the same facts as the original claim; and (iii) amendments which add or substitute a wholly new claim or cause of action which is not connected with the original claim at all ...

 

312 Amendments fall within Category (1) are not affected by the time-limits, as the nature of the original claim remains intact, and all that is sought to be done is change the grounds on which the claim is based (it is to be noted that, when determining whether the proposed amendment falls within the existing claim as pleaded or constitutes an entirely new claim, regard is to be had to the whole of the ET1, not just to the general description of the complaint in Box 1 : Ali v Office of National Statistics [2004] EWCA Civ 1363. ... The new cause of action will not be time-barred because no separate cause of action is being added, but again whether the amendment is allowed will depend on factors such as hardship and delay. Selkent Bus Co Ltd v Moore is illustrative of the problems faced by a claimant who seeks to amend at a late stage. ... The factors which influenced the EAT in refusing the amendment were -

 

(a) the delay in making the application to amend, coupled with a lack of explanation from the claimant as to why the new grounds, which must have been known to him at the time, had not been put forward in the original application;

 

(b) the absence of hardship to the claimant as his case would in any event proceed on the argument basis; and

 

(c) the greater risk of hardship to the respondents if the amendment were allowed, resulting from an adjournment of the proceedings and a longer hearing, with a concomitant increase in costs that would not be recoverable."

 

...

 

312.01 So far as Category (ii) is concerned, the tribunals and courts have always shown a willingness to permit a claimant to amend to allege a different type of claim from the one pleaded if this can be justified by the facts set out in the original claim. It is usually described as putting a new 'label' on facts already pleaded. Thus a claimant was rarely prevented from amending his claim where, for example, he had sought a redundancy payment when his proper claim was for unfair dismissal, or vice versa, as the factual basis for both types of claim was invariably the same ... It has been held that it is not good law to apply the time-limits to such amendments ... .

 

312.05 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 843 H). In order to determine whether the amendment amounts to a wholly new claim, as opposed to a change of label, it will be necessary to examine the case as set out in the original application to see if it provides a 'causative link' with the proposed amendment (see Housing Group v Bryant [1999]ICR 123) ...

 

However, although there may be an absence of a link between the case as pleaded in the original claim and the proposed amendment, this will not be conclusive against the amendment being allowed. In Evershed v New Star Asset Management [UKEAT/0249/09], Underhill J pointed out that it is no more than a factor, the weight to be given to it being a matter of judgment in each case (Paragraph 24).

 

312.06 When considering whether to allow an amendment an Employment Tribunal should analyse carefully the extent to which the amendment would extend, the issues and the evidence ... The Court of Appeal [in Evershed] approved this approach and agreed the amendment did not raise 'any materially new factual allegations' ... Rimer LJ held 'the thrust of the complaints in both is essentially the same'. The fact the whistle blowing claim would require an investigation of the various component ingredients of such a case did not mean that wholly different evidence would have to be adduced

 

...

 

312.08 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, 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 ... rather than on the statutory basis.

 

..."

 

Further according to Underhill J in the TGWU v Safeway Stores Ltd [UKEAT/0092/07], 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'; 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 a discretionary consideration and not a rule of law'. Underhill J allowed a new out of time claim by way of amendment and, in doing so, applied the hardship/injustice test rather than reasonable practicability.

 

2.3 Under Rule 10(2)(p) of the Industrial Tribunals Rules of Procedure 2005, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 ('the Rules of Procedure'), an Employment Judge has a discretion whether or not to give leave to amend a claim. Over the years, there has been considerable legal authority as to how that discretion should be exercised in relation to the various heads of distinction, referred to in Harvey, as set out above, including, in particular, the well-known guidance of Mummery J in the case of Selkent Bus Company v Moore [1996] ICR 836, as referred to above. Of course, in determining whether or not to exercise the discretion to grant the amendment, each case will depend on its own particular facts and fact specific.

 

In a recent decision, in the case of Abercrombie & Others v AGA Rangemaster Ltd [2013] EWCA Civ 1148, Underhill LJ has reviewed the authorities in this area, which I consider is helpful to repeat in some detail:-

 

"47 ... There is nothing in the Rules or the case-law to say that an amendment to substitute a new cause of action is impermissible. The Judge evidently had in mind the language of Mummery J in the relevant part of the guidance in Selkent which he was seeking to follow. The passage reads:

 

'(4) Whenever the discretion to grant an 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.

 

(5) 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 additions 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 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 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 the 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 may be made at any time - before, at, 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 on 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 of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.'

 

If the final sentence of point (5)(a) is taken in isolation it could be understood as an indication that the fact that a pleading introduces 'a new cause of action' would of itself weigh heavily against amendment. However it is clear from the passage as a whole that Mummery J was not advocating so formalistic an approach. He refers to 'the ... substitution of other labels for facts already pleaded' as an example of the kind of case where (other things being equal) amendment should readily be permitted - the contrast being with 'the making of entirely new factual allegations which change the basis of the existing claim'. (It is perhaps worth emphasising that head (5) of Mummery J's guidance in Selkent was not intended as prescribing some kind of a tick-box exercise. As he makes clear, it is simply a discussion of the kinds of factors which are likely to be relevant in striking the balance which he identifies under head (4).)

 

48. Consistently with that way of putting it, the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: 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. It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted: see the discussion in Harvey on Industrial Relations and Employment Law Para 312.01-03. We were referred by way of example to my decision in Transport and General Workers Union v Safeway Stores Ltd (UKEAT/0092/07), in which the claimants were permitted to add a claim by a trade union for breach of the collective consultation obligations under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 to what had been pleaded only as a claim for unfair dismissal by individual employees. (That case in fact probably went beyond 'mere re-labelling' - as do others which are indeed more authoritative examples, such as British Printing Corporation (North) Ltd v Kelly (above), where this Court permitted an amendment to substitute a claim for unfair dismissal for a claim initially pleaded as a claim for redundancy payments. "

 

2.4 If a claim is in time, or the tribunal considers time should be extended, the tribunal must then still consider the other factors relevant to the exercise of the discretion, as set out previously. Equally, if the claim is out of time and the tribunal considers time should not be extended under the appropriate test, the issue arises to be considered what is the position and, in particular, is this finding fatal to the application for amendment? This issue of time, in relation to the exercise of the discretion, gives rise therefore to potentially considerable difficulties.

 

It is correct that Mummery J observed in Selkent that 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 the matter of time-limits. Indeed, it has been considered in some cases that this dicta would be read as implying, if the claim is out of time and times does not fall to be extended under the applicable legislative test, then the application for amendment must necessarily be refused. However, Underhill J in Safeway Stores Ltd and again in Abercrombie, as referred to above, makes it clear that, in his view, it is not what Mummery J intended and to do so would be to take what Mummery J said out of context. According to Underhill J, in Safeway, the reason why it is essential, in Mummery J's words, that a tribunal consider whether the claim in question is in time is simply that it is 'a factor' - albeit an important and potentially decisive one in the exercise of the discretion. Thus, it would seem that, if the relevant time-limit for presenting the 'new' claim has expired, this will not, in itself, prevent the tribunal exercising its discretion to allow the amendment and is therefore not an absolute bar; but it is a significant important factor for the tribunal to weigh in the balance when considering how to exercise its discretion (see further Chaudhary v Secretary of State for Health [UKEAT/0512/04] ) and UCATT v Amicus and Others [2009 ICR 852.

 

2.5 Interestingly, in this context, the fact of 'balance of relevant injustice and hardship involved in refusing or granting an amendment', as seen in Selkent, has been held, in Ali v Office of National Statistics [2004] EWCA Civ 1363, to be little different to the 'just and equitable' ground, which applies in relation to extension of time, under the relevant legislation, in discrimination claims.

 

In a recent decision, Langstaff P in Thomson v East Dunbartonshire Council [UKEATS/0049/13], referred to the Mummery test in Selkent of 'relative injustice and hardship', whereas the Employment Judge had referred to the 'balance of hardship'. Langstaff P commented:-

 

"It seems to me that the balance of prejudice, essentially, is intended to convey the same concept. It may perhaps be helpful to return to the words used by Mummery J in future consideration of a case such as this, though frequently 'balance of prejudice' is the lawyer's shorthand for the necessary exercise, purely because it may focus more closely on two separate questions : injustice o the one hand, hardship on the other. But balance of prejudice is capable of including matters which might not strictly be described as unjust or hard but may nonetheless be relevant. All the circumstances of course have to be taken into account ...."

 

In the case of Evershed v New Star Asset Management [2009] UKEAT/0249/09, Underhill J, as he then was, said, which was not challenged in the context of the subsequent appeal, to which reference has been made previously:-

 

"33 ... It is not the business of the tribunals to punish parties (or their advisers) for their errors. In very many, perhaps most, cases where permission is given to amend a pleading, the party in question could if he had been sufficiently careful got it right first time round."

 

 

2.6 In a recent decision by HH Eady QC, in the case of Mist v Derby Community Health Service NHS Trust [2016] UKEAT/0170/15, the Employment Appeal Tribunal again confirmed that, when considering issues of amendment, the approach that must be adopted remains that laid down in Selkent Bus Company Ltd v Moore [1996] ICR 836; and, in particular, where an application was to add a claim out of time that would not be determinative and neither would any failure of explanation for the delay. It was emphasised the paramount consideration remains the relative injustice and hardship in refusing or granting an amendment.

 

3.1 Applying the principles set out in the above authorities, I am not satisfied the proposed amendment falls within the first classification in Harvey. I accept that there are certain factual references in the passages in the claim form, relied upon by the claimant's representative in the letter of 5 January 2017 for the purposes of this application, which could be relevant to a claim of protected disclosure, pursuant to Article 134A of the 1996 Order; but, in my judgment, these are not sufficient in themselves, and without more, for me to be satisfied the proposed amendments are merely designed to alter the basis of an existing claim, without purporting to raise a new distinct head of complaint. The claimant is now seeking to raise, in my judgment, a new distinct head of complaint of 'automatic' unfair dismissal because the claimant made a protected disclosure. That is not the same as a complaint of 'ordinary' unfair dismissal, pursuant to Article 126 of the 1996 Order.

 

However, I am satisfied the application falls within the second classification in Harvey. Having taken into account the said factual references in the claim form relied upon by the claimant, as set out previously, albeit these are limited and are likely to require further clarification by way of Notices for Additional Information and/or Discovery, I am satisfied the proposed amendments add a new distinct head of complaint but which is linked and/or arises out of the same facts as the original claim of 'ordinary' unfair dismissal. In these circumstances, it was not necessary for me to consider further the issue of time-limits.

 

Even if I am wrong, and the proposed amendment falls within the third classification in Harvey, as submitted by the respondent's representative and is a new claim/ cause of action, unconnected to the original claim at all, it is apparent from the legal authorities referred to previously, that issues of time remain just one factor and are not determinative of the application. Indeed, even when one is considering an amendment within the third classification, the hardship/injustice test, seen in Selkent, may still apply, especially if there is not a significant difference between the factual and legal issues raised by the new claim (see further Safeway Stores Ltd and Abercrombie). In light of my decision above, it was not necessary for me to further consider these matters.

 

3.2 I have no doubt that the amendment, the subject-matter of this application, is a major amendment. However, although I accept that it is probable there will require to be some further additional evidence given at the hearing of this matter than might have been the case prior to any such amendment, I am not satisfied that any such additional evidence would significantly increase the amount of evidence which would require to be heard and determined by the tribunal or indeed the length of the hearing (see Evershed and Abercrombie). Indeed, although I suspect that the proposed amendment will involve longer and more detailed legal submissions by the representatives, this should also not significantly increase the length of the hearing.

 

3.3 On the basis of the submissions made by the respondent's representative, I was not satisfied there was any 'real' prejudice to the respondent if the said amendment is allowed. Of course, where any amendment is granted, any such amendment will have to be 'defended' by the respondent. However, that is not determinative of any such application, There was no suggestion that all relevant witnesses, many of whom will already be required to give evidence in order to defend the claimant's claim of 'ordinary' unfair dismissal, will not be available to defend the claim of 'automatic' unfair dismissal, pursuant to Article 134A of the 1996 Order.

 

3.4 There has obviously been some delay in the making of this application. It must be noted the claim form was presented to the tribunal, on the claimant's behalf, by his legal representatives on 22 September 2016. Given the said factual references set out in the claimant's claim form, relied upon by the claimant for this application, it may seem somewhat surprising that a claim, pursuant to Article 134A, does not appear to have been considered by the claimant's legal representatives at the time of presenting the said claim. It would appear that it was not until counsel was instructed and had an opportunity to consult with the claimant, immediately prior to the Case Management Discussion on 21 December 2016, that the potential relevance of any such claim, pursuant to Article 134A of the 1996 Order was addressed by the claimant's representatives. Firstly, any such delay is not determinative of the application. Secondly, in light of the foregoing, there is some limited explanation for the failure to address this issue at the time when the claimant's claim form was presented to the tribunal. In this context, I am also conscious of the judgment of Underhill J, as he then was, in the case of Evershed (see Paragraph 33 of the judgment of Underhill J, referred to previously).

 

3.5 Therefore, the paramount consideration, in the accordance with the principles laid down in Selkent, remains the relative injustice and hardship to the parties in refusing or granting the amendment. Such an issue is often difficult to determine, not least in carrying out the balancing exercise referred to by Mummery LJ in Selkent. However, after taking account of my conclusions, as set out in the previous sub-paragraphs, I have decided that, when deciding the relevant injustice and hardship involved in granting and refusing the proposed amendment, that the greater hardship and injustice would be for the claimant, if the application was refused.

 

Therefore, I have decided that the claimant's application for an order for leave to amend his claim, in the terms set out above, is granted; and I order that the said claim of the claimant is now so amended.

 

3.6 The respondent, if it wishes to present an amended response to the claimant's claim, as so amended, is ordered to do so within 14 days from the date this decision is issued to the parties.

 

4. In light of my decision, as set out above, in relation to the application to amend the claimant's claim I made the following orders, by consent, in accordance with Rule 10(1) of the Industrial Tribunals Rules of Procedure:-

 

(1) Issues

 

An agreed statement of legal and main factual issues is to be lodged with the Office of the Tribunals, seven days following the completion of the interlocutory process, referred to below. The said statement requires to address, in particular, the relevant legal and main factual issues relating to the particulars of the claimant's claim for protected disclosure, including all relevant legal and main factual issues relating to the qualifying disclosure relied upon by the claimant and any defences relied on by the respondent, pursuant to Article 67A (as defined by Article 67B of the 1996 Order).

 

(2) Discovery/Additional Information

 

The parties are ordered to serve any Notices for Discovery and/or Additional Information by 9 February 2017 and to respond by 2 March 2017.

 

(3) Witness Statements

 

(a) The claimant and any witness he wishes to call must provide a signed and dated witness statement to the respondent's representative by 5.00 pm on 31 March 2017.

 

(b) The respondent and any witness it wishes to call must provide a signed and dated witness statement to the claimant's representative by 28 April 2017.

 

(c) Oral evidence or written supplementary witness statements in response to the respondent's witness statements will only be permitted with leave of the tribunal where good reason is shown.

 

(d) A witness statement must be a complete statement of the evidence relating to the issues, in respect of both liability and remedy, in the case, that the witness wishes to give to the tribunal. Witness statements must not contain the parties' submissions or arguments. The parties will be given the opportunity to make submissions at the conclusion of the evidence. A witness will not be permitted to add to his/her statement without the consent of the tribunal. Consent will only be given where there is good reason for doing so.

 

Witness statements should commence with an introductory paragraph which identifies the witness and explains the relevance of the witness to the claim, eg claimant, line manager, member of interview panel, etc.

 

The statement should then use the factual issues agreed and set out the witnesses' evidence, if any, in relation to each factual issue chronologically. The claimant's witness statement should also include his evidence to support any claim for injury to feelings and/or financial loss. It should also include his evidence of all steps taken to obtain alternative employment. The witness statement should finish with a short summary paragraph.

 

Witness statements may not exceed 5,000 words unless otherwise directed by the tribunal.

 

(e) Any documents referred to in the witness statements must be identified by the relevant page number in the bundle.

 

(f) Witness statements will not be read aloud to the tribunal, subject to the discretion of the tribunal hearing the case.

 

(g) Witness statements will be read by the tribunal prior to the commencement of the hearing which will then proceed by way of cross-examination.

 

(4) Schedule of Loss

 

(a) The claimant must provide to the respondent's representative a schedule of all financial loss claimed by the claimant, setting out in particular the nature and amount of any such loss claimed and how that sum is made up, by 5.00 pm on 9 March 2017.

 

(b) The claimant in his witness statement shall refer to and annex a separate schedule of all financial loss claimed by the claimant, setting out in particular the nature and amount of any such loss claimed and how that sum is made up.

 

(5) Bundles

 

The parties are ordered to liaise and prepare an agreed and paginated bundle of documents, four copies of which must be lodged in the Office of the Tribunals by 15 May 2017, along with four copies of a further folder containing witness statements:-

(a) the bundle must contain only those documents which are necessary for the tribunal to hear and determine the claim. The bundle is not meant to contain all documentation which has been disclosed between the parties, documents should appear only once in the bundle;

 

(b) the bundle must contain all documents relating to financial loss including all documents relating to the steps taken by the claimant to obtain alternative employment.

 

(c) the bundle must contain a detailed index and each page in the bundle must be clearly and consecutively numbered;

 

(d) each document must appear in chronological sequence;

 

(e) the bundle may not, without the consent of the tribunal, contain more than 250 pages.

(6) Date of Hearing

 

The hearing will be from:-

 

22 - 26 May 2017

The tribunal will read the witness statements between 10.00 am and 12.00 pm on the first day of hearing and the substantive hearing will commence immediately thereafter. Parties and witnesses must be in attendance at that point.

 

The above dates are subject to any objection by either of the representatives within seven days of the date of this pre-hearing review decision. In that event, proposed alternative agreed dates at or about the same period are to be provided by the representatives to the Office of the Tribunals.

 

(7) Timetable

 

The parties should liaise and try to agree a timetable to ensure that the cross-examination of witnesses and closing submissions are completed within the allocated time. If the parties are unable to do so the Employment Judge will set the timetable with the parties at the outset of the Hearing.

 

Parties and their representatives should note that if any matters arise which require a further direction or order by the tribunal, they should immediately notify the Office of the Tribunals of that matter so that a Case Management Discussion can be arranged promptly.

 

(8) The above are Orders of the Tribunal and must be complied with. If any further application is required to be made to the Office of the Tribunals, including any application for an extension of time, then any such application must be made promptly and in accordance with the relevant Rules of Procedure and having regard to the dates for hearing, as set out below.

 

(9) Progress/Review Case Management Discussion

 

A Progress/Review Case Management Discussion is to be held on:-

 

5 May 2017 at 9.30 am

 

This hearing can be by way of Telephone Conference, subject to any application by either party and/or direction of the tribunal for attendance in person at the hearing.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 19 January 2017, at Belfast

 

 

Date decision recorded in register and issued to parties:

 

Notice

 

 

1. If any party fails and/or is unable to comply with any of the above Orders, any application arising out of such failure or inability to comply must be made promptly to the tribunal and in accordance with the Industrial Tribunals Rules of Procedure 2005.

 

2. Failure to comply with any of these Orders may result in a Costs Order or a Preparation Time Order or a Wasted Costs Order or an Order that the whole or part of the claim, or as the case may be, the response may be struck out and, where appropriate, the respondent may be debarred from responding to the claim altogether.

 

3. Under Article 9(4) of the Industrial Tribunals (Northern Ireland) Order 1996, any person who, without reasonable excuse, fails to comply with a requirement to grant discovery and inspection of documents under Rule 10(2)(d) of the Industrial Tribunals Rules of Procedure 2005 shall be liable on summary conviction to a fine not exceeding Level 3 on the standard scale - £1,000 at 3 September 2007, but subject to alteration from time to time.

 

4. A party may apply to the tribunal to vary or revoke any of the above Orders in accordance with the Industrial Tribunals Rules of Procedure 2005.