Browne v Perfecseal Limited [2010] NIFET 40

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 40/10FET

573/10

CLAIMANT: Patrick Browne

RESPONDENT: Perfecseal Limited

DECISION ON A PRE-HEARING REVIEW

The tribunal refuses the amendment to the claimant’s claim form to add a claim for disability discrimination.

Constitution of Tribunal:

Chairman (sitting alone): Mr Brian Greene

Appearances:

The claimant appeared in person.

The respondent was represented by Ms Lorraine Toolan of EEF Northern Ireland.

Sources of Evidence

1. The Tribunal heard evidence from the claimant. The Tribunal had regard to the claimant’s claim form; the respondent’s response; a case management discussion record of 14 September 2010; and a grievance letter from the claimant dated

17 December 2009. The Tribunal also had regard to the oral submissions on behalf of both parties.

Claim and Defence

2. (1) The claimant claims unfair dismissal, automatically unfair dismissal on the basis of having made a protected disclosure and discrimination on the basis of his political opinion. The respondent denies the claimant’s complaints in their entirety. At a case management discussion on 14 September 2010 the claimant indicated his desire to amend his claim by adding a complaint of disability discrimination.

(2) At the pre-hearing review on today the proposed amendment was amended by consent to clarify that the claimant was seeking to make a complaint of disability discrimination in relation to events prior to his dismissal and to the dismissal itself.

(3) The proposed amendment as amended is;-

“I wish to amend my application to the tribunal to include disability discrimination.

My reason being that I made the company aware that I was receiving treatment from a mental health unit. Each time my doctor put me out on the sick (with sick line provided) the company disciplined me for it. I believe that my dismissal also constitutes an act of disability discrimination.”

The Issues

3. Whether the claimant should be given leave to amend his claim form to include a complaint of disability discrimination as set out in the above proposed amendment.

Findings of Fact

4. The following facts found by the Tribunal emerged from the evidence adduced or appeared to the Tribunal not to be in dispute;-

(1) The claimant is a un-represented litigant. On 22 March 2010 he presented a claim for unfair dismissal, automatically unfair dismissal, for having made a protected disclosure, and discrimination on the ground of his political opinion against the respondent.

(2) The claim progressed in the normal fashion and the respondent entered its response on 11 May 2010. Thereafter Notices for Additional Information and Discovery were issued by the respondent.

(3) A case management discussion was arranged for 14 September 2010 in order to prepare the claim for hearing. In the course of the case management discussion the claimant indicated that he wished to make a complaint of disability discrimination. Accordingly time was afforded to the claimant and he produced the proposed amendment as set out above.

(4) Accordingly a pre-hearing review, to consider the claimant’s application to amend his claim, was listed for today, 9 November 2010.

(5) The respondent objects to the claimant’s proposed amendment.

(6) Following a disciplinary process the respondent dismissed the claimant on

29 January 2010 for gross misconduct.

(7) The claimant’s claim form, lodged on 22 March 2010, was prepared by
Miss Louise McShane, solicitor.

(8) The claim form was prepared by Miss McShane from instructions given to her by the claimant. The claimant indicates that he made four complaints to Miss McShane, unfair dismissal, automatically unfair dismissal, discrimination on the basis of political opinion and discrimination on the basis of his disability.

(9) The claim form makes no reference to disability discrimination either by ticking it as a complaint at paragraph 8.2 or making any reference to it in the body of the document. The claimant speculates that no reference is made to disability discrimination because the solicitor overlooked it.

(10) The body of the document relates entirely to the decision by the respondent to dismiss the claimant.

(11) At paragraph 5.7 of the claim form, where an explanation is sought if a grievance has not been lodged, the claim form states,

“I have not put my complaint in writing as it relates to the act of dismissal.”

(12) The claimant returned to the office of the solicitor where he was presented with the typed version of his claim form. He glanced at it and signed it without noticing that there was no reference to a claim for disability discrimination.

(13) The claimant only became aware of the omission in our about June or July 2010. The claimant did not take any steps at that time to inform the respondent or indeed the Office of the Tribunals of his intention to seek to amend his claim to add a claim for disability discrimination. The claimant explains his failure to do so by reason of his ill health, hospitalisation and recovery process in July, August and September 2010 arising from serious illness.

(14) However, during that time the claimant was able to communicate with Ms Toolan about his claim and to prepare and make available to her documents relevant to his claim.

(15) At the case management discussion on 14 September 2010 the claimant did not attend with a pre-prepared proposed amendment. The proposed amendment was only drafted once the Tribunal had given time to the claimant to prepare it. The issue of the proposed amendment itself arose from a question put by the chairman to the claimant.

The Law

5. (1) The Tribunal has discretion to make an Order giving the claimant leave to amend his claim under Rule 9(2)(p) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005.

(2) A Tribunal shall not consider a claim for disability discrimination unless it is brought within three months of the act complained of (Disability Discrimination Act 1995 Schedule 3, 3(1)).

(3) A Tribunal may consider a claim which is out of time if it is just and equitable to do so (Disability Discrimination Act 1995, Schedule 3, 3(2)).

(4) Tribunals are required to exercise their discretion in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial decisions (Selkent Bus Company Limited v Moore [1996] ICR 836 at 842H).

(5) The principles to be applied by a Tribunal when considering whether to permit an amendment or not are to be found in Selkent Bus Company Limited v Moore and are discussed in Harvey on Industrial Relations subsection P1[277] to [286].

(6) Following the Selkent Bus case there are three categories of amendment applications;-

(a) The first category covers amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint. This category will not be subject to scrutiny in respect of time limits but will be subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.

(b) The second category covers amendments that add or substitute a new cause of action but one that is linked to, or arises out of the same facts already pleaded in the original claim. This category of amendment is usually described as putting a new “label” on facts already pleaded. This type of amendment will not be subject to scrutiny in respect of time limits provided that the claim which is sought to be amended has been presented in time, but will be subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.

(c) The third category covers amendments that seek or add or substitute a wholly new claim or cause of action or a new positive case involving consideration of facts that have not been previously pleaded. To determine whether the amendment amounts to a wholly new claim as opposed to a change of label it will be necessary, as a matter construction, to examine the case as set out in the original claim to see if it provides the necessary and “causative link” with the proposed amendment. Amendment applications, coming within the third category, are subject to scrutiny in respect of time limits as if there were entirely new claims that had been brought outside the time limit.

The Tribunal should therefore only exercise its discretion to grant an application to amend under this category if it considers it just and equitable to do so. In considering that discretion the Tribunal is required to consider the prejudice which each party would suffer as a result of granting or refusing the application and to have regard to all the circumstances, in particular;

(i) the nature of the amendment.

(ii) the applicability of statutory time limits; and

(iii) the timing and manner of the application.

(7) The discretion to grant an extension of time under the ‘just and equitable’ formula has been held to be as wide as that given to the civil courts by S33 of the Limitation Act 1980 to determine whether to extend time in personal injury claims (British Coal Corpn v Keeble, DPP v Marshall). Under that section the court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the circumstances, in particular:-

(i) the length of and reasons for the delay;

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

(iii) the extent to which the parties should have co-operated with any request for information;

(iv) the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action; and

(v) the steps taken by the claimant to obtain the appropriate professional advice once he knew of the possibility of taking action.

There is no legal requirement on a Tribunal to go through this list in every case provided that no significant factor is left out of account by the Tribunal in exercising its discretion. (Harvey on Industrial Relations and Employment Law P1 [279]).

(8) The Tribunal must be aware that time limits are to be exercised strictly in industrial and employment cases and that it is for the claimant to satisfy the Tribunal that it should exercise its “just and equitable” jurisdiction.

Application of the Law and Findings of Fact

6. (1) The Tribunal refuses the application to amend. In so doing the Tribunal had regard to the following matters:-

(a) The amendment pleads new facts not previously pleaded.

(b) The amendment adds a new claim of disability discrimination.

(c) The amendment also adds a new area of complaint. The claim as currently constituted focuses on the claimant’s dismissal. The proposed amendment relates not just to the dismissal itself but to events unconnected to the dismissal and for a period of time before the dismissal.

(d) The amendment is outside the prescribed time limits. It requires the exercise of the Tribunal’s discretion.

(e) The proposed amendment falls under the third category of amendment set out in the Selkent Bus case.

(f) The amendment, if permitted, would require further inquiry by Notices for Additional Information and Discovery.

(g) The respondent has indicated that it does not accept that the claimant suffers from a disability, for the purposes of the Disability Discrimination Act 1995, as amended. That would become an additional issue and might require medical evidence to be obtained and adduced.

(h) No explanation has been provided for the omission of the claim for disability discrimination by a solicitor. The claimant’s speculation is insufficient. An explanation should have been provided.

(i) The refusal of leave to amend will not prevent the claimant from proceeding with his three other complaints of unfair dismissal, automatically unfair dismissal and political discrimination.

(j) Allowing the amendment would involve a widening of the claim and the lengthening if it and the marshalling of additional evidence, including medical evidence which would involve additional expense.

(k) The risk of hardship is, on balance, greater if the amendment is allowed than if it is refused.

(l) The claim will proceed to hearing on the complaints already pleaded and accepted.

Chairman:

Date and place of hearing: 9 November 2010, Belfast

Date decision recorded in register and issued to parties:

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Fair Employment Tribunal Northern Ireland Decisions