Fair Employment Tribunal Northern Ireland Decisions

THE FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS: 62/17 FET

6261/17

 

 

 

 

CLAIMANT: William Mervyn McNeill

 

 

RESPONDENT: Northern Health & Social Care Trust

 

 

DECISION ON A PRE-HEARING REVIEW

 

The Tribunal's determination is that the claimant's claims may not be amended to include the claims of alleged victimisation as set out in that part (paragraphs 8 and 10, as amended) of the document attachment to an email of 25 April 2018 to the Tribunal entitled: "AMENDED ET 1 FORM 27/9/17 (AMENDED APRIL 2018)"

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Employment Judge Leonard

Appearances:

 

The claimant was represented by Colin Foote, Solicitor, of Colin Foote,
Employment Law.

 

The respondent was represented by Claire Tiffney, Solicitor Consultant of Business Services Organisation.

 

 

REASONS

 

1.             This case comes before the Tribunal by way of a Pre-Hearing Review as a result of directions made by Employment Judge Murray at a Case Management Discussion (CMD) held on 12 April 2018. The background to the matter is that the claimant issued a claim form dated 27 September 2017, which was received by the Office of Tribunals on that date. In paragraph 7.1 of that claim form, the claimant indicated that the type of complaint which the Tribunal was to consider was, "Discrimination - Religious Belief/Political opinion". In paragraph 7.2, the claimant specified that the date on which the matter about which he was complaining happened was "30/06/2017" and he indicated that the discrimination alleged was "ongoing" by stating "YES" in the appropriate place. In paragraph 7.3, regarding when he first knew of the matter about which he was complaining, the claimant stated, "29/01/2016".

 

2.             As this is material to the issues to be determined in this Pre-Hearing Review, the Tribunal believes it is best to set out the entire content of paragraph 7.4 of the claim form ("Details of Claim") in the manner that this has been completed by the claimant. In doing so in this Pre-Hearing Review determination, the name of the individual alluded to by the claimant has been redacted (that person is referred to by the Tribunal as "AA") for the reason that the name is not material to a determination of the issues. As is mentioned below, the claimant's representative, at hearing, handed in a document encapsulating the details as set out in the claimant's claim form. The representative had helpfully numbered each of the salient issues or points in the claim form from number 1 through to number 22. These numbers (in square brackets) have been ascribed by the Tribunal to the claim details, as that numbering assists in identifying the details of claim and the pertinent issues.

 

3.             Paragraph 7.4 of the claim form (with numbering in square brackets added) accordingly reads as follows: -

 

"DETAILS OF CLAIM

I have summarised the points above in order

 

[1] DESCRIPTION

Religious Discrimination 2012-2017

 

[2] ACT THAT TOOK PLACE

I was disciplined for breach of conflict of interest (1 ^st discipline) in August 2013, while a colleague (AA) of a different religion was not disciplined for similar conflict of interest and only discovered by chance. I raised concerns in February 2016, but still have not received a reply. At this point I would like to reiterate, I have known (AA) since 1976 as a colleague and a friend and believe he should not be disciplined because of the NHSCT error.

 

[3] BRIEF SUMMARY

A colleague (who is prepared to conform (sic) all and I, Whistleblew re potential serious financial fraud and disregards of Health & Safety Legislation in January 2012 implicating Senior Directors of the NHSCT.

 

[4] This Whistleblowing was frowned (sic) by the NHSCT Senior Management as it was implicating senior members of staff, however we eventually forwarded our Whistleblowing claim to the then Minister of Health, Edwin Poots and Dr Andrew McCormick (Permanent Secretary and the HSC Executive) who instructed a Special Investigation to be carried out under the direction of Department of Health & Social Services and Public Safety (DHSSPS) and Business Services Organisation (BSO).

 

[5] The NHSCT considered I was bringing the NHSCT into disrepute, as this investigation had now gone public and (sic) covered by the media.

 

[6] The Whistleblowing experience was horrendous and I suffered acute mental stress.

 

[7] Following the investigation we were vindicated by the special report issued in January 2014, resulting in a number of Senior Staff being disciplined, but my victimisation continued including the NHSCT disciplining myself (2 ^nd disciplinary, December 2014) regarding the very issue I Whistleblew on, and nearly caused my life by their action. However, I appealed the disciplinary decision, (December 2014) and NHSCT further failed to follow their own Policy and I was finally vindicated in August 2015, but my opinion (sic) that victimisation continued until I decided to leave the NHSCT in August 2016 but finally leaving on 30 June 2017.

 

[8] The Religious Discrimination that occurred was in October 2012 regarding breach of conflict of interest in which I had carried out a private Planning application in 2004, for a contractor who worked for legacy United Hospitals Trust, which was amalgamated into the NHSCT as part of the Review of Public Administration in 2007.

 

[9] During the Disciplinary Investigation (1 ^st disciplinary), I was asked if I carried out a project for this contractor, and I confirmed I had.

 

[10] The NHSCT decided to discipline myself in August 2013.

[11] During the Whistleblowing Special investigation by DHSSPS and BSO they also investigated all staff (including myself) who carried out private architectural work and discovered another member of staff who is of the Catholic faith (AA), who also had carried out 3 projects for a contractor that he had directly worked with, within

 

[12] the legacy Homefirst Trust, also amalgamated under the NHSCT in 2007.

 

[13] However, the difference is, when asked by the DHSSPS/BSO investigation team, he denied carrying out any private work for any contractor who worked for the legacy Homefirst/NHSCT, however, the DHSSPS Investigation Team had discovered that AA had carried (sic) 3 projects for a contractor who worked for the Trust.

 

[14] The recommendation of DHSSPS/BSO Special Investigation report was that the NHSCT investigate the issue, but no investigation was carried out nor disciplinary action taken against this member of staff for a similar breach.

 

[15] NAMES

Northern Health & Social Care Trust (NHSCT)

 

[16] UNLAWFUL ACTION

The NHSCT treated myself differently and unequally due to my religion and failed to follow their own Policies, aims, objectives (mission statement) and core values.

 

[17] CLAIM FOR PAYMENT

I am making this claim to ensure that for whatever reason, the NHSCT treated myself differently and ensure that NHSCT learn that they should treat everyone equally to comply with their own policies, aims, objectives (mission statement) and core values while ensuring they comply with Legislation.

 

Amount claim (sic) I will leave this to the industrial tribunal to decide for failure

 

[18] - To investigate as the DHHSPS/BSO Special investigation report

 

- To treat me differently, which was religious discrimination, whether intentionally or unintentionally

 

VICTIMISATION

[19] Religion"

 

Paragraph 8.1 of the claim form ("Other Information") contains the following text:-

 

"7.4 When act took place

Why I delayed in making claim for Religious Discrimination

 

a.    [20] Previous experience and continuing victimisation by my employer until I have been able to leave my employment via Voluntary Exit Scheme on 30 ^th June 2017

 

b.    [21] I find it embarrassing to make a claim for Religious Discrimination during my employment and still do as I have many colleagues and friends who are of the Catholic faith (I use the words Catholic faith as advised by a close friend who is of the Catholic faith)

 

c.    [22] I find it difficult to make such a claim and in the past two months, since retirement I have given much thought as to whether to make this claim or not as well as a promise to my wife [name redacted] young children [names redacted] and indeed myself to spend some quality time over the summer period after horrific periods, particularly since 2012, that caused acute mental stress and nearly taking my own life."

 

4.             The respondent's response to the claim, received by the Office of Tribunals on
4 December 2017, took fundamental issue with the claim and raised a preliminary jurisdictional point, asserting that issues had already been rehearsed in a previous tribunal claim (under case reference 45/13 IT) which the claimant had withdrawn on the morning of the first day of hearing, that date being 7 October 2013. The respondent's position was that this could only be raised by way of background and could not form part of the current claim on account of Res Judicata and issue estoppel. The response provided further detail and information. A considerable part of this latter is not in contention in view of the manner in which the claimant's case has been presented in this Pre-Hearing Review.

 

5.             Regarding the progression of the claim, a CMD was held on 25 January 2018 before Employment Judge Murray. In a Record of Proceedings dated 29 January 2018, the salient points and issues were set forth, including, at paragraph 5 thereof, the stipulation that it was for the claimant to make clear the scope of his case in relation to whistleblowing. The Employment Judge explained to the claimant that he must look carefully at that CMD record and she timetabled the case in regard to the particulars required to be provided by the claimant.

 

6.             There was a further CMD held on 12 April 2018, again before Employment Judge Murray, with a Record of Proceedings dated 16 April 2018. Again, this Record sets forth the salient issues including recording that, by agreement, the Employment Judge had listed a Pre-Hearing Review amendment hearing to deal with the claimant's application to amend his claim to include the matters to be listed in the amendment document. If it was the case that the claimant wished to amend his claim to include further allegations of religious discrimination the Tribunal's stipulation was that this must be made clear in the amendment document. The claimant was required also to confirm, in regard to each of the allegations listed, whether: (1) the allegations were simply a particularisation of a claim already contained within the claim form or; (2) whether the allegations constituted a relabelling of the claim already contained in the claim form or; (3) whether the allegations constituted new claims. The Employment Judge directed that the claimant's amendment document be provided to the respondents and to the Tribunal by 26 April 2018.

 

7.             The Pre-Hearing Review amendment hearing now accordingly proceeds before this Tribunal, with the issue listed for the determination of this Tribunal being stated as follows:-

 

" Whether or not the claim should be amended to include the claims outlined in that document and to consider any time-points which may be relevant."

 

The reference to "that document" is to any amendment document lodged with the Tribunal by the claimant, as discussed.

 

8.             By e-mail transmitted on 25 April 2018, addressed to Employment Judge Murray, the claimant stated as follows:-

 

" As requested I attach my bullet points. Herein I list allegations of the detrimental treatment due to perceived religious discrimination and having been a whistleblower, that delayed raising religious discrimination until I was freed from the Respondents employment.

 

........

 

As requested, I refer to the Recording of Proceedings 25 January 2018 and would request amendment to relevant points ;"

 

Then the claimant proceeded to refer to some relatively minor amendments which he sought to have made to the text of the two Records of Proceedings, respectively dated 29 January 2018 and 16 April 2018.

 

9.             The attachment to the foregoing email was entitled: "AMENDED ET 1 FORM 27/9/17 (AMENDED APRIL 2018)", and the text proceeds as follows (with all of the detail as set forth by the claimant set out below). For convenience, the Tribunal shall hereinafter refer to this document is being the "April Amendments". The Tribunal was provided by the claimant's representative with a copy of the April Amendments with the salient paragraphs numbered, firstly, A and B and then numbered from 1 to 10. These cyphers and numbers have been ascribed to the details of the April Amendments as set forth below. These are included in square brackets, to identify, as these were indicated by the representative. The April Amendments also refer to a number of persons by name. The Tribunal has made the decision to have these persons' identities anonymised for the reason that personal identification of these individuals is not necessary for the purposes of making and recording this determination. The identification (AA) to (GG) is used in that regard. The text (as anonymised and as numbered) thus reads follows:-

 

 

"Claim 1 - Religious Discrimination

 

I believe all the allegations below are simply a particularisation of the claim already contained within the claim form

 

Ø [A] January/February 2016 - as a Protestant I was disciplined May 2013, but following DHSSPS/BSO audit recommendation (January 2014), a Catholic colleague (AA - name given) was not disciplined for a similar, but worse offence.

 

Ø [B] 18/3/15-30/6/17 - respondent failed to fully deal with grievance issues that included perceived religious discrimination and victimisation that delayed taking this Industrial Tribunal

Claim 2 - Continuous Victimisation due to Whistleblowing, Post IT45/13 (7/10/13)

 

I believe all the allegations below are simply a particularisation of a claim already contained within the claim form

 

Ø [1] December 2013 - Draft "Strictly private & confidential" Investigation Report was leaked to my colleagues by the Respondent. It falsely accused me of raising investigation into Private Work. DHSSPS/BSO did correct the report, but it appears the Respondent neither investigated the leak nor as promised advised my colleagues of their blunder.

 

Ø [2] 29/1/14 - At a meeting with Respondents Director of HR (BB - name given) and Senior Director (CC - name given) I perceived they disliked me/Whistleblowers as they never acknowledged that I did right despite Respondents own Policy, Ministerial statement and National Health Service standards.

 

Ø [3] 29/1/14 - Discovery of malicious allegation against me by Respondents Assistant director (DD - name given). The Respondent took no action against this Assistant Director when I provided evidence that the allegation was false.

 

Ø [4] November 2014 - Prior to me returning to work, Respondent sought opinion from my colleagues about me returning to work, including those subjected to disciplinary action because of my Whistleblowing.

 

Ø [5] 16/12/14 and 18/12/14 - I was to face disciplinary proceedings on the very issue I Whistleblew on due to biased and unjust investigations controlled by the Respondent.

 

Ø [6] 16/12/14 - Respondents Presenting Officer (EE - name given) confirmed that he could not prove the allegation against me and the disciplinary ended abruptly. However on 20/12/14, I received Respondents correspondence indicating they had proved the allegation against me. Clearly victimisation!

 

Ø [7] December 2014 - I appealed in accordance with Respondents Policy and appeal was to be heard by March 2015, but wasn't until August 2015. The appeal was upheld and I was vindicated.

 

Ø [8] March 2015 and January 2017 - Respondent carried out selective interviewing for post of Assistant Director, Estates Services which neither was compliant with Respondents Policy nor consistent with previous established internal trawls. I perceived I was being treated differently, because I was a Whistleblower and/or a Protestant.

 

Ø   [9] April 2016 - Discovery that Director (FF - name given) and Assistant Director (DD), both charged with gross misconduct because of my Whistleblowing, were not disciplined in accordance with Respondents Policy. In fact, they were commended and I was never commended but disciplined 16/12/14.

 

Ø   [10] May 2016 - June 2017 - I perceived that the new Director of Finance (GG - name given) disliked me either as a Protestant or a Whistleblower. This was evidenced in an increasing and unsustainable workload, a reduction in my staff, undermining my position, along with constantly finding fault with me."

 

10.          As this Pre-Hearing Review proceeded, there was further clarification provided by the claimant's representative and further discussions engaged in between the respective representatives concerning certain of the lettered and numbered paragraphs contained in the April Amendments. The Tribunal is grateful to both representatives for the approach taken to the matter and for the clarification provided to the Tribunal; this has enabled the Tribunal's focus to be directed to specific, narrowed, issues which clearly remain in contention between the parties.

 

11.          In this latter process, the respondent's representative made clear to the Tribunal that the particular subject matter of the April Amendments (paragraphs lettered A and B) was not in contention and no determination relating to these was required by the Tribunal in this hearing. Further to that, the claimant's representative indicated that the claimant had agreed that paragraph number 1 in the April Amendments was contextual in subject matter only and this was accepted by the respondent's side.

 

12.          The focus was then placed upon the remaining of the numbered paragraphs in the April Amendments. After some initial reluctance, it was then mutually agreed between the parties and confirmed to the Tribunal that the following April Amendments, Paragraphs numbered 2, 3 and 4, were contextual or background material only and, again, did not require any determination by the Tribunal in connection with the issues listed for this Pre-Hearing Review.

 

13.          After further discussions the Tribunal was invited to focus only upon paragraphs numbered 8 and 10 in the April Amendments, which respectively required a determination to be made by the Tribunal. However, in regard to the content of paragraph number 8, the claimant's representative conceded that the following words might be deleted from the closing words of that paragraph, as follows: - "...and/or a Protestant". The effect of this deletion accordingly confined the subject matter to the whistleblower issue only and thus did not connect with any alleged religious discrimination. A similar amendment was also conceded in respect of paragraph number 10, by the deletion of the word " either" in the first line of the paragraph, and the words " Protestant or" in the next line, leaving the allegation pertaining to the whistleblower issue only and removing any reference to alleged religious discrimination. On account of these discussions, concessions and consequent agreement and the resultant clarification to the Tribunal, the Tribunal was afforded a much reduced focus, which was upon the April Amendments, paragraph 8 and paragraph 10 (both amended, as mentioned).

 

The Applicable Law

 

14. The Tribunal was referred to an extract from Harvey which sets out the relevant law concerning amendments to claims. This is at Harvey Division PI, Practice and Procedure, "Amending the Claim" from [311] to [324] - [339]. It was common case between the parties that the law in this area is relatively settled, the leading cases being Selkent Bus Co Ltd -v- Moore [1996] IRLR 661 and Cocking -v- Sandhurst (Stationers) Ltd [1974] ICR 650. Mummery J in Selkent drew attention to the fact that judicial discretion concerning amendments to a claim must be exercised in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions. Some amendments sought may be minor, such as 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 addition of an entirely new claim or cause of action. Whilst Mummery J indicated that there is no time limit for making an application to amend, the longer the delay in making the application of a substantial nature, the greater the scope for it being rejected. Accordingly, a distinction may be drawn between the following three categories:-

 

(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 (hereinafter referred to as "category one" amendments);

 

(ii) 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; and

 

(iii) amendments which add or substitute an entirely new claim or cause of action which is not connected to the original claim at all (hereinafter referred to as "category three" amendments).

 

In terms of the pertinent statutory provisions, as the focus is upon victimisation alleged against the respondent arising from the claimant having carried out "whistleblowing", being a protected disclosure or disclosures, the relevant provisions (Articles 70B and 71 (3)) of the Employment Rights (Northern Ireland) Order 1996 are the following (with only the immediately material provisions cited):-

 

"70B. -” (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.

 

71. -”(1) .... (1A)  A worker may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 70B.

 

.......

 

(3) An industrial tribunal shall not consider a complaint under this Article unless it is presented-”

 

(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

 

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

 

The Submissions of the Parties

 

15. For the claimant, the claimant's representative submitted that when a full reading was conducted of what was express and implied in the claim form, it was entirely evident that the April Amendments set forth allegations made against the respondent which consisted simply of a particularisation of the claim already contained within the claim form. The Tribunal was invited to read the claim form in its entirety. The claimant's representative specifically directed the Tribunal's focus towards the following parts of the claim form and made the following submissions.

 

16. The references in paragraph 7.4 to events relating to 2012 were contextual or background only; that was agreed with the respondent's representative. Therefore the reference to the whistleblowing issue and the respondent's senior management's failure to follow procedure was not a new claim, but was rather a particularisation of the claim that already existed. The rest of the claim related to the second disciplinary process only. There was clear reference to continued victimisation. The claimant was making the point that the victimisation and whistleblowing were ongoing issues following the (second) disciplinary hearing in 2014. Therefore the claim, as expressed, already existed without the necessity for any amendment. It was conceded that items numbered 1, 2, 3, and 4 of the April Amendments were background only. Item numbered 10 of the April Amendments related to how the Director of Finance (GG) allegedly had treated the claimant less favourably, as a whistleblower. (The Tribunal did note the unconverted information that GG had only been in post from May 2016 onwards, some four years after the original matters which had occurred in 2012). The claimant was finally vindicated after conclusion of the second disciplinary process in August 2015. However the claimant's case was that the victimisation continued. Here the claimant's representative referred to the numbered portion of the text of the claim form (ascribed number 7 as above) which included: ".... victimisation continued until I decided to leave the NHSCT in August 2016 but finally leaving on 30 June, 2017". It was accepted by the claimant's representative that the claimant did not allude to the two (Assistant Director, Estates Services) recruitment exercises (see item numbered 8 in the April Amendments) nor did he identify or name GG (see item numbered 10 in the April Amendments). However the submission was that the claimant in his claim form was saying something more than just alluding to the (second) disciplinary process; matters did not end there in 2015. The claimant's case was that there was ongoing victimisation, extending until 2017. The claimant's submission was that there was no time issue requiring to be considered, as this constituted an ongoing act or acts of victimisation. The claimant's representative specifically referred the Tribunal to the following portions of the claim form text (using the numbering provided to assist):-

 

[16] " The NHSCT treated myself differently and unequally due to my religion and failed to follow their own Policies, aims, objectives (mission statement) and core values".

 

[18] - " To treat me differently, which was religious discrimination, whether intentionally or unintentionally".

 

17. For the respondent, the representative submitted that, on account of Res Judicata and issue estoppel (which had indeed been conceded by the claimant) anything prior to the tribunal's Order in Case Reference: 45/13IT, striking out the earlier claim after that had been withdrawn by the claimant on 7 October 2013, was contextual only. As the claimant's representative had clarified to the Tribunal, with references to religious discrimination being taken out of April Amendments, paragraphs 8 and 10, these matters related to victimisation claims only. Any allegations could only have run from October 2013. These were, however, entirely new claims. These could not arise from any interpretation of, nor could these be in any manner reasonably drawn from, the content of the claim form. Any such were, insofar as material, considerably out of time. This was certainly not a case of putting a "new label" on facts or matters already pleaded; rather this consisted of the assertion of entirely new claims. The representative stated, by way of illustration, that one of the allegations made, in paragraph 10 of the April Amendments, was an allegation that the new Director of Finance (GG) disliked the claimant on account of the fact that the claimant was a whistleblower. However, GG had not taken up that post as Director of Finance until relatively recently. He could not possibly have been connected with allegations before that point. There were two allegations relating to the two (Assistant Director, Estates Services) recruitment exercises (see item numbered 8 in the April Amendments). The first of these exercises was conducted in March 2015. GG was not in post at that time.

 

18. The claimant's representative accepted the submission concerning GG to the extent that it was conceded by the representative that any allegation which might connect to the recruitment process conducted in March 2015 predated GG being in post and therefore could not be connected with GG. However, the allegation of victimisation by GG of the claimant as whistleblower was maintained by the claimant's representative concerning the January 2017 recruitment process, when GG was indeed in post.

 

19. For the respondent, it was submitted that a close examination of the claimant's claim form concerning any allegations of victimisation on account of the claimant being a whistleblower showed that nothing whatsoever regarding this was present; there was not even a "fleeting reference" to that. This was very evidently an entirely new claim, it was submitted. It was therefore properly to be classified as falling within the third category as identified in Selkent. As it was a "category three" matter, there arose a time issue, which applied to any aspect of the victimisation claim as set forth in the April Amendments. GG only came into post in May of 2016; that was four years after the original issues and allegations which had emerged in 2012. If these new claims contained in the April Amendments were admitted, fresh facts would need to be established from entirely new and previously unanticipated evidence. However, the respondent's representative submitted that the Tribunal ought to have proper regard to the fact that the claimant must have known about this when he lodged his claim form with the Tribunal, yet these matters were not put into his claim form. The claimant already had a victimisation claim contained within the claim form. Here, the Tribunal was invited to note numbered point 7 in the claim form and the words "... victimisation continued...". If the claimant was alert to the concept of victimisation, why did the claimant did not choose to particularise the allegations regarding GG? The respondent's representative continued with the submission that the balance of hardship was certainly against the respondent and if these new claims were admitted, the respondent would be required to conduct a considerable, lengthy and complex exercise in obtaining additional evidence, with resultant substantial cost and difficulty for the respondent.

 

20. The claimant's representative disagreed with that latter proposition. He argued that there was ongoing discrimination referred to in the claim form (paragraph 1) and victimisation in 2015 (paragraph 7) but the victimisation had continued. The claim was not limited to discrimination and matters did not end in 2015, but continued for two years after that. The claimant's submission, taking account of the guidance from Selkent and the balance of hardship consideration, was that both parties were on equal footing in terms of hardship. Further, the Tribunal had to bear in mind that case progression was still at a relatively early stage. There had been no discovery provided. Further, the claimant's case was that this was nothing more than a "category 1" amendment classification, so there was no time issue to be considered.

 

21. The respondent's representative reiterated that the claimant could indeed have made this claim. However, the claimant deliberately, it must be presumed, chose not to do so. Therefore, this was a positive new victimisation claim. Indeed, whilst the respondent disputed the claimant's assertion that it was a "category one" classification case, even if the Tribunal, having considered matters, did accept that proposition, the respondent would, nonetheless, still have to obtain evidence from entirely new personnel covering a three-year period, some of which personnel were no longer in employment with the respondent, it was indicated. Furthermore, the claimant had made it clear that he was fully aware of any alleged victimisation. However, notwithstanding this, he had decided to wait until he was given an opportunity to leave employment with the respondent under the Voluntary Exit Scheme, before he took any action. There was clear evidence that it had been entirely reasonably practicable for the claimant to have taken action well before the time at which he instituted the Tribunal proceedings. "Reasonable practicability" was the proper statutory test in regard to such victimisation claims. The respondent's representative made reference to Article 71 (3) of the Employment Rights (Northern Ireland) Order 1996.

 

22. For the claimant, it was submitted that there was always going to be an overlap in time; these were complex matters. The respondent would have had to cover these issues and facts in any event, so there was no additional difficulty or expense, in reality, as far as the respondent would be concerned.

 

23. The respondent's representative submitted that if one examines the two CMD Records of Proceedings, it was entirely clear that the claimant was attempting to expand his claim to include a claim concerning the time when GG was Director of Finance. There was no mention whatsoever of this in the CMD Records of Proceedings. Responding to this, the claimant's representative indicated that the claimant was legally unrepresented at both CMD's. Indeed the Employment Judge had specified that the claimant was required to further particularise his claim: therefore issues were not closed. However, the respondent's representative indicated that there was "not a whisper" of any of this in the claim form. However, the respondent did accept that the door was not fully closed by the Employment Judge. Nonetheless the Tribunal's discretion was not limitless.

 

24. The Tribunal requested from the claimant's representative specific identification of the exact wording in the claim form which would relate to these specific claims as indicated in paragraphs 8 and 10 of the April Amendments (as modified) and any specific linkage to GG. The claimant's representative submitted that the phrase in the claim form (numbered 16) that the respondent "... failed to follow their own Policies, aims, objectives (mission statement) and core values" constituted the necessary linkage to the (modified) paragraphs 8 and 10 of the April Amendments.

 

25. It was accepted by the claimant's representative that the "not reasonably practicable" test was the applicable statutory test (if this was a "category three" matter - which of course was not conceded by the claimant) in regard to any victimisation claim, but only if that was the classification adopted by the Tribunal.

 

The Tribunal's Determination

 

26. Having heard the well-rehearsed and well-articulated arguments and having carefully analysed all of the text and resultant meaning of the claim form and having carefully considered the matters set forth in the April Amendments, the Tribunal endeavoured to identify on foot of the arguments how the express or readily implied claims contained within the claim form could be linked to the matters now set forth by the claimant in the April Amendments in respect of which the Tribunal is required to make an adjudication. There is no doubt that there is considerable interpretative difficulty in identifying anything in the full claim form text which could be linked to GG, either by direct express reference or by obvious implication. Whilst the claimant has certainly argued that there was "ongoing discrimination", focusing upon the victimisation element of the claim which has subsisted after the concessions were made and the consequent modifications made to the April Amendments, paragraphs 8 and 10, the Tribunal had very considerable difficulty in accepting the claimant's argument that this victimisation claim as set forth in the April Amendments constitutes a "category one" classification amendment.

 

27. The Tribunal's view, having given careful consideration to the matter, is that these victimisation references in paragraphs 8 and 10 of the April Amendments constitute entirely new claims. They are not either: (i) amendments merely designed to alter the basis of the existing claim, but without purporting to raise a new distinct head of complaint, in other words "category one" amendments, nor are they (ii) 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 (the second category). If one reads the modified paragraphs 8 and 10, one notes that in respect of paragraph 8, this subject matter refers to an allegation concerning selective interviewing for the post of Assistant Director, Estate Services, which was conducted in March 2015 and again in January 2017. The victimisation claim is expressly connected to the claimant's alleged treatment in respect of these two recruitment exercises. There is nothing of this subject matter that could be read into or interpreted from the text of the claim form. If one then then looks at the subject matter of modified paragraph 10, the allegation is that from May of 2016 to June of 2017 the claimant perceived that the new Director of Finance (GG) disliked him as a whistleblower. The claimant's allegation is that the evidence for this latter is what he alleges to be an increasing and unsustainable workload, a reduction in his staff, the undermining of the claimant's position, along with allegations of GG constantly finding fault with the claimant. Again, there is nothing of this subject matter which could be read into or interpreted from the text of the claim form. The claimant's representative (see paragraph 16 of this determination) has identified paragraphs numbered 16 and 18 in the claim form, relating to alleged religious discrimination. The representative, when later asked by the Tribunal to identify the precise linkage, endeavoured to make the rather tenuous connection to the phrase in the claim form (paragraph number 16) that the respondent "... failed to follow their own Policies, aims, objectives (mission statement) and core values", but the asserted linkage is not in any manner persuasive.

 

28. As these are entirely new claims falling into the "category 3" classification, the amendments sought are therefore subject to consideration of time limitation issues. Having examined the timing, it is noted that the claimant must have been fully aware of issues of grievance and discontent regarding the two recruitment exercises at the time these were conducted. No contrary submission regarding the claimant's state of awareness was made to the Tribunal. Furthermore, the claimant must have been, at the time, fully alert to any perceptions or issues of grievance concerning GG and his management which would have been connected to any feelings or perceptions of victimisation connected to the claimant's earlier whistleblowing. However, as it was put by the respondent's representative, "there is not a whisper" of this. It is straining interpretation of the text of the claim form to the extreme to seek to imply any such claims into the text of the claim form. The claimant's representative made a valiant attempt to do so, but that attempt must fail. These additional claims are very clearly out of time.

 

29. The claimant delayed bringing the claim, having been upon his own admission (as he states very candidly in the claim form) aware of the situation (see paragraph 7.3 of the claim form) since "29/01/2016", until he left employment with the respondent under the Voluntary Exit Scheme on 30 June 2017. Even then, the claim was not submitted to the Tribunal until 27 September 2017. Furthermore, notwithstanding submitting the claim in September of 2017 the claimant is only, since 25 April 2018, now seeking to make amendments to the claim. The Tribunal is required to have regard to the timing and the manner of application (see Harvey [311.02]). There is no information presented to the Tribunal that any new facts or new evidence have now become available to the claimant since initiating the September 2017 claim. These decisions as to timing were the claimant's own choice. However, the Tribunal is obliged to apply in such victimisation claims connected with any protected disclosure under Article 70B of the Employment Rights (Northern Ireland) Order 1996 the statutory test contained in Article 71 (3).

 

30. Accordingly, the Tribunal is not empowered to consider a complaint unless it is presented before the end of the period of three months beginning with the date of the act (or failure to act) to which the complaint relates or, where that act or failure to act is part of a series of similar acts of failures, the last of them. On that basis, these victimisation claims in paragraphs 8 and 10 of the April Amendments are clearly out of time. The so-called "escape clause" contained in Article 71 (3) (b) provides for the "not reasonably practicable" test. There is no basis other than to consider that it was indeed reasonably practicable for the claimant to have included these claims in his original claim form.

 

31. That being so, the Tribunal having carefully considered the matter and applying the applicable statutory and other considerations, does not permit the claim to be extended to include these particularised claims as set forth in the (modified) paragraphs 8 and 10 of the April Amendments; these are out of time and they fail the application of the "not reasonably practicable" test. If that were not to have been the Tribunal's determination in this case, the balance of hardship issue would have been determined in any event by the Tribunal in favour of the respondent in that there would have been considerable additional work (and presumed expense) involved in the taking of additional evidence from entirely new witnesses, amongst other matters, relating to two allegations of victimisation concerning two separate recruitment processes for a senior official's post, this work not being foreseeable as necessary when regard was has by the respondent to the claim, as originally formulated and as set forth by the claimant in the claim form. The same applied to the content of paragraph 10 of the April Amendments.

 

32. For these reasons, the Tribunal's determination is that the claimant's claims may not be amended to include the claims of alleged victimisation as set out in that part of the April Amendments (paragraphs 8 and 10, as amended) upon which the Tribunal was required to make a determination in this Pre-Hearing Review.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 24 May 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: