Marcinek v Qualitrol Hathaway Danahar UK ... [2010] NIIT 00077

THE INDUSTRIAL TRIBUNALS

CASE REF: 77/10

CLAIMANT: Kazimierz Jozef Marcinek

RESPONDENT: Qualitrol Hathaway Danaher UK Industries

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(1)(a) The claimant’s claim form, dated 17 December 2009, included a claim of disability discrimination under the Disability Discrimination Act 1995 (as amended).

(b) The claimant’s claim form included a claim of whistle blowing under the Public Disclosure Act 1998.

(2) A further Case Management Discussion will be held in this matter to consider the matters set out in Paragraph 4 of this decision on 21 September 2010 at 4.00 pm.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant appeared in person and was unrepresented, but was assisted by Ms Kat Gelger, Interpreter.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Ms R Richardson, Solicitor, of J Blair Employment Law Solicitors.

Reasons

1.1 This pre-hearing review was arranged to consider the following issues:-

(1) Whether the claim form, dated 17 December 2009, includes a claim of disability discrimination under the Disability Discrimination Act 1995 (as amended)?

(2) If it is found that the claim form does not include such a claim, should the claimant be given leave to amend such a claim form and be granted an extension of time accordingly?

(3) Whether the claim form, dated 17 December 2009, includes a claim of whistle blowing under the Public Interest Disclosure Act 1998?

(4) If it is found that the claim form does not include such a claim, should the claimant be given leave to amend such a claim form and be granted an extension of time accordingly?

1.2 At the commencement of this hearing, and following initial submissions by the claimant, I became concerned that the issues set out at (2) and (4) in Paragraph 1.1 above would potentially involve the tribunal considering and determining matters which could have relevance to the matters to be decided at the substantive hearing and that the necessary compartmentalisation, referred to in the guidance of the House of Lords in SCA Packaging Ltd v Boyle & Another [2009] IRLR 749/UKHL 37, might not be possible. In the circumstances, it was agreed that the tribunal, at this pre-hearing review, would only determine the said issues set out in (1) and (3) above. In doing so, I concluded I had no alternative but to limit the issues to be determined at this pre-hearing review, in light of the guidance in SCA Packaging Ltd v Boyle & Another [2009] UKHL 37 Packaging Ltd and the matters raised by the claimant in his said submissions, which had not been apparent whenever the pre-hearing review was directed by me at the Case Management Discussion on 29 July 2010, as set out in the Record of Proceedings, dated 4 August 2010. In view of the tribunal’s decision at this pre-hearing review, as set out above, it was not necessary for me to give any further direction/order in relation to the said amendment issues.

1.3 The claimant and the respondent’s representative did not call any oral evidence; but both made oral submissions to the tribunal.

2.1 The claimant presented a claim form, dated 17 December 2009, to the tribunal on 21 December 2009. There was no dispute that the claimant did not tick a Box (7.1) of the claim form relating to ‘discrimination – disability’. In Paragraph 7.1 under ‘other type of complaints (please specify)’, the claimant had also stated:-

“Lack of respect for medical condition, breaking health, safety and welfare regulation.”

2.2 It was not disputed that it was necessary for the tribunal to consider the whole of the claim form and, in particular, the details given in the body of the claim form (see further Grimmer v KLM Cityhopper [2005] IRLR 596). Further, in a recent decision of the Employment Appeal Tribunal, Mrs Justice Slade in the case of Baker v Commissioner of the Police Metropolis [UKEAT/0201/09] confirmed that a tribunal, where it is considering whether a particular claim raised in a claim form, must read the claim form as a whole and not adopt a technical approach. The failure to tick any box in Paragraph 7.1 was therefore not fatal to the claimant’s application; but it meant that it was necessary for the tribunal to consider in greater detail those paragraphs of the claim form, where the details of the claimant’s claims were set out, in order to see whether the claimant’s claim form, presented to the tribunal on 17 December 2009, included any claim of disability discrimination and/or any whistle blowing claim.

2.3 In Paragraph 7.4 of the claim form, insofar as relevant and material, the claimant stated, inter alia:-

“The issue started in March 2009, when Cell BEN 6000 where all the workers apart from the team leaders were Polish were forced to stand all day doing exactly the same job as before. All formal promise to try implementing of chairs were ignored. Finding it very tiring, demotivating and in disagreement with Regulation 11 (Paragraph 3) of the Workplace (Health, Safety and Welfare) Regulations 1992, I initiated a formal complaint about the situation. However, it was notoriously postponed and we never received a written response as we had kindly requested.

The document was dated 21^st of April 2009.

In May 2009 I sustained a minor ankle injury and submitted a doctor’s certificate advising avoiding long periods of uninterrupted standing (dated 26/05/09). I submitted the document to Mr Colin Fearon Production Manager. For a short period of time I was given an alternative role but then I was sent home without payment for a couple of days, even though I could successfully perform all my regular duties with occasional use of a chair without any negative influence on quality and quantity of my job. I feel it was a revenge on my person for initiating the complaint. I was treated less favourably than at least one person named Avril, who is allowed to use a chair due to medical condition, which certainly is not more serious than was mine at that time. I was literally forced to hand in my resignation due to devoiding me of my income.

I exchanged a couple of letters with the management and attended a few meetings but my overall feeling is that both my person and my grievance have never been treated seriously enough. For example the letter from Mark Wilson, Contract Manager (dated 12 August 2009) contains obvious proves that he has not investigated the issue at all:-

‘operators now have to stand for part of the process’ -

the truth is that they have to stand all the time. ‘Both those perceived to be local and those ‘non-local’ are also standing all days’ – the truth is that at that time only the staff of BEN 6000 were forbidden to use a chair”.

3. It is not for me to determine, at this hearing, the strength or weakness of any claim made by the claimant in his claim form; but merely to determine whether the claimant has made the said other claims, the subject-matter of this hearing. In reading the claim form as a whole and not adopting a technical approach, I also had to take into account that the claimant, who is not legally represented, presented his own claim form in a language, that is not his first language. Reading the claim form as a whole and not adopting a technical approach, I was satisfied that, although the claimant had not ticked the box ‘discrimination – disability’ there was sufficient contained in the claim form to show that a claim of disability discrimination had been made by him. In particular, I noted the reference to the fact that he had sustained an ankle injury and, also that he had stated that he had been “treated less favourably than at least one person named Avril, who is allowed to use a chair due to a medical condition … “. In addition, under other types of complaint in Paragraph 7.1 he had also used similar wording to that seen in Paragraph 7.4, when he had stated “lack of respect for medical condition”.

Having determined that the claim form included a claim of disability discrimination, it will be, for the respondent, if it so wishes, to seek, by way of Notice, any additional information and/or discovery and/or relevant details of the precise claim/claims that are made by the claimant pursuant to the 1995 Act.

Again, reading the claim form as a whole and not adopting a technical approach, I was satisfied that the claimant’s claim form included a whistle blowing claim under the Public Interest Disclosure Act 1998. In particular, I noted that the claimant had referred to making a complaint to his employer, the respondent, in relation to Regulation 11(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 and also when he had stated “I feel it was a revenge on my person for initiating the complaint”. Again, it was not for me to determine, at this hearing, whether any such complaint raised by the claimant to his employer, in relation to the said Regulations, was a qualifying disclosure for the purposes of any claim made by him; but, as recognised by Mr Hamill, such a complaint could come within such a qualifying disclosure. Given the claim form was written by the claimant in his own words and English is not his first language, I considered that his use of the wording that he ‘felt it was a revenge on his person for initiating the complaint’, was of particular relevance and significance to my decision when concluding that such a claim was included in the claim form. Again, it will be for the respondent, if it wishes to do so, to raise, by way of Notice for Additional Information and/or Discovery and Inspection, the precise details of the claim made by the claimant; and, in particular, whether the claimant is making a claim of being subjected to a detriment by his employer on the ground that he has made a protective disclosure, pursuant to Article 70B of the Employment Rights (Northern Ireland) Order 1996 and/or a claim of automatic unfair dismissal on the ground the reason for the dismissal was that the claimant had made a protected disclosure, pursuant to Article 134A of the Employment Rights (Northern Ireland) Order 1996, which provisions were inserted in the 1996 Order, pursuant to the provisions of the Public Interest Disclosure Act 1998.

4. The substantive hearing in this matter has been listed for hearing, as set out in the Record of Proceedings, dated 22 June 2010, of the Case Management Discussion on 15 June 2010. In light of my decision, as set out above, it is apparent that the issues identified at that time will require to be amended to reflect the said additional claims. As indicated above, the precise nature of those additional claims will only be able to be properly identified, following the conclusion of the interlocutory process. I therefore direct that any further Notices for Additional Information and/or Discovery and Inspection by either party, in light of my decision above, should be issued and replied to as a matter of urgency in accordance with the relevant Rules of Procedure and the date for the next Case Management Discussion, as set out below. If any further Order is required from the tribunal, then appropriate application should be made to the tribunal promptly, and in accordance with the relevant Rules of Procedure and any such application will be further considered at the next Case Management Discussion. I understand that the respondent has made replies to the claimant’s interlocutory notices; but he is not satisfied with those replies. If he requires to obtain any further Order from the tribunal then he must make the necessary application to the tribunal, including all relevant Notices/replies/ and relevant correspondence promptly, and in accordance with the relevant Rules of Procedure and these will also be further considered at the next Case Management Discussion.

The next Case Management Discussion of this matter will be held on:-

21 September 2010 at 4.00 pm

At that hearing, I will consider any amendment to the issues to be determined by the tribunal in this matter, together with any outstanding interlocutory issues between the parties, as referred to above. In addition, I will also consider whether the order for the preparation and exchange of witness statements should be set aside and/or, if not, an amended timetable should be made. In the meantime, prior to the next Case Management Discussion, it is not necessary for either party to prepare and exchange witness statements, in accordance with the order at the Case Management Discussion on 15 June 2010. If it is necessary to do so, I will also consider, at the next Case Management Discussion, any amendment to the dates for hearing of this matter, and, in particular, in light of the additional claims and any difficulties that may have arisen in relation to the exchange of medical evidence, if required, in relation to any claim under the Disability Discrimination Act 1995.

Chairman:

Date and place of hearing: 25 August 2010, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Marcinek v Qualitrol Hathaway Danahar UK ... [2010] NIIT 00077_10IT (27 August 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/00077_10IT.html Cite as: [2010] NIIT 77_10IT, [2010] NIIT 00077_10IT

Industrial Tribunals Northern Ireland Decisions