McCavana v Omniplex Holdings (N.I.) Ltd [2016] NIFET 00060FET (24 February 2016)

FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 60/15FET

1017/15

CLAIMANT: Conor McCavana

RESPONDENT: Omniplex Holdings (N.I.) Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is as follows:

(1) The claimant’s application for leave to amend his claim to include a claim for discrimination by way of victimisation, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 in relation to his dismissal by the respondent, in the terms set out in the opening paragraph of this letter dated 8 December 2015, received by the tribunal on 10 December 2015 is granted; and the said claim is so amended.

(2) The respondent, if it wishes to present an amended response to the claimant’s claim, so amended, is ordered to do so within 28 days from the date this decision is issued to the parties.

(3) A further Case Management Discussion will be arranged in due course, with the date and time to be notified to the parties, to give such further and/or amended case management directions/orders to enable this matter to be listed for a substantive hearing.

(4) If either the claimant or the respondent wishes to issue any further Notices for Additional Information and/or Discovery and Inspection arising out of the said amendment to the claimant’s claim against the respondent, any such notice must be issued and replied to promptly, in accordance with the rules of procedure and having regard to the date of the next Case Management Discussion.

(5) For the avoidance of any doubt, the claimant’s claim, if any, or discrimination by way of victimisation, pursuant to Sex Discrimination (Northern Ireland) Order 1976, is dismissed, upon oral withdrawal by the claimant at this Pre-Hearing Review.

(6) Further Case Management Orders were made by the tribunal, as set out in paragraph 4 of this decision.

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Drennan QC

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Ms M Mulholland, Barrister-at-Law, instructed by Mr P Bowles and Company Solicitors.

REASONS

1.1 The claimant presented to the tribunal his claim against the respondent on 1 June 2015. The respondent represented to the tribunal its response on 30 June 2015, in which it denied liability for the claimant’s said claim.

1.2 In accordance with the tribunal’s normal discrimination case management procedures, at a Case Management Discussion on 1 September 2015, following discussion, the tribunal identified the following claims that the claimant was alleging, namely

“(1) that he had been unfairly dismissed contrary to the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order) on the basis that he had raised a health and safety related complaint;

(2) that he had been unlawfully discriminated against on the grounds of his gender compared with Danielle Doran in relation to alleged harassment by Ms Doran and also in relation to his treatment by the respondent during the disciplinary process;

(3) that he had been unlawfully discriminated against/unlawfully harassed under the Fair Employment and Treatment (Northern Ireland) Order 1998 in relation to treatment by Ms Doran a fellow employee;

(4) that there had been an unlawful deduction from wages contrary to the 1996 Order in relation to non-payment or part-payment of wages during his period of suspension;

(5) that the respondent failed to provide the statutory terms and conditions of service to the claimant contrary to the 1996 Order”.

In paragraph 4 of the said record of proceedings of the said case management discussion on a date of 2 September 2015 it was noted - “the claimant does mention alleged sectarian remarks from his colleague in this claim form, although he does not specifically raise a claim in that respect. Following discussion, it was confirmed that the claimant seeks to amend his claim form to clarify that he has a

separate claim of direct discrimination/harassment contrary to FETO in that claim form. The respondent will confirm with the claimant in the Office of the Tribunals by 5.00 pm on 18 September 2015 whether they accept or reject the proposed amendment.”

Subsequently, by letter dated 14 September 2015, the respondent’s representative confirmed - “... in the interests of saving time and expense we consent to the respondent’s amendments to his claim form”.

1.3 By an Article 85 Order, dated 29 October 2015, the Vice President directed that the matters which would otherwise fall to an industrial tribunal for consideration should instead be heard and determined by the Fair Employment Tribunal; and the claims, insofar as the Fair Employment Tribunal deem appropriate should be heard and considered together.

1.4 At a further hearing on 27 November 2015, it became apparent that the claimant, who it must be remembered is a litigant in person, was potentially seeking to make a claim of discrimination by way of victimisation under FETO. The respondent’s representative accepted that the respondent had already consented to the granting of leave to amend the claimant’s claim to include a claim of direct discrimination/harassment under FETO, as set out above; but she stated it was not prepared to consent to any further amendment, if made, to include a claim of discrimination by way of victimisation and, in particular, in the absence of the claimant set out the specific terms of any such proposed amendment. In a document dated 8 December 2015, received by the tribunal on 10 December 2015, the claimant set out his proposed amendment to include a claim of discrimination by way of victimisation, pursuant to FETO in relation to his dismissal by the respondent.

1.5 The terms of the proposed amendment were as follows:-

“Victimisation on sectarian grounds by way of unfair dismissal

(1) FETO affords the right to not suffer detriment based on the protected characteristic (political belief) by direct discrimination/harassment as well as victimisation for making or being part of a complaint against discrimination on those grounds.

(2) I raised a complaint to Omniplex Holdings (N.I.) Ltd against discrimination on the aforementioned ground(s) detailed in the copied letter attached.

(3) In response to and because of this complaint, Omniplex Holdings (N.I.) Ltd initiated a false discrimination procedure with no grounds on which to base it. This resulted in the execution of a pre-determined decision to dismiss me by Omniplex Holdings (N.I.) Ltd. This dismissal was a detriment against me.

(4) Contrary to FETO, Omniplex Holdings (N.I.) Ltd caused me detriment by way of victimisation.

I further mention that in the original ET1 form mentioned victimisation on grounds of gender”.

1.6 In light of the foregoing, at a Case Management Discussion on 22 January 2016, as set out in the record of proceedings dated 27 January 2016, I directed that a pre-hearing review would be listed for hearing to consider and determine:-

“The claimant’s application for leave to amend his claim to include a claim for discrimination by way of victimisation, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 in relation to his dismissal by the respondent, in the terms set out in the opening paragraph of his letter dated 8 December 2015, received by the tribunal on 10 December 2015”.

1.7 The claimant gave oral evidence in support of his said application for leave to amend the said claim. The respondent did not call any evidence. At the conclusion of the hearing, both the claimant and the respondent’s representative made oral submissions in relation to the claimant’s said application for amendment of his said claim, as set out above and to which the respondent objected. In determining this application it was not necessary for me to determine the facts in issue between the parties and, in particular, the merits of the claimant’s claims, amended or otherwise, against the respondent.

1.8 At the outset of the hearing, the claimant confirmed that in his claim form, presented to the tribunal on 1 June 2015 he had stated, inter alia - “victimised because I am a male”. He confirmed that that at the Case Management Discussion on 1 September 2015, when the claims were identified, as set out previously in the record of proceedings dated 2 September 2015, he had indicated that he was not making/was no longer making any claim of victimisation because he was a male. For the avoidance of doubt, any such claim of victimisation on the grounds of gender, pursuant to Sex Discrimination (Northern Ireland) Order 1976 is now dismissed, upon withdrawal by the claimant.

2.1 In determining the issues, as set out in the previous paragraph of this decision, the following legal principles, in my judgement, were relevant to same, as set out in the following sub-paragraphs.

2.2 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 ... .”

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

“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.

2.4 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 classification, 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 will be 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.”

2.5 Even if a claim is in time, or the tribunal considers the time for an ‘out of time’ claim 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, can therefore give rise, potentially, to 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.

2.6 Interestingly, in this context, the test 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 on 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.”

2.7 In a recent decision by H H 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.

2.8 In discrimination claims, when exercising the statutory discretion to extend time, and adjust and credit extra grounds, it is well established a tribunal has a very wide discretion and it is entitled to consider anything that is relevant. As seen in Robertson - V - Bexley Community Centre [2003] IRLR 434, time limits are exercised strictly in employment cases and, in particular, there is no presumption that they should be so unless they can justify failure to exercise the discretion. On the contrary, a tribunal cannot hear a complaint unless the claimant convinces that it is just and equitable to extend time. The exercise of discretion, at least under the legislative provision in relation to extension of time is the exception rather than the rule. Thus, it is possible, in certain circumstances, the issue of time could give rise to difficult conclusion pending on the precise issue to be determined, the particular facts and the relevant factors to be considered in the exercise of any relevant discretion and, in particular, in the context of an application for leave to amend.

2.9 In determining whether to extend time on ‘just and equitable’ grounds, relevant factors, as identified in British Coal Corporation - V - Keeble and Others [1997] IRLR 336, by analogy with the limitation legislation, include:-

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

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

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action”.

This “check list” is not mandatory - provided no significant factors being left out of the count by the tribunal makes a sizing discretion (see London Borough of Southwark - V - Afolabi [2003] IRLR 220). If an issue of specific/real prejudice can be shown by a respondent, this can be of particular relevance (see Apelogun - Gabriels - V - London Borough of Lamberth [2002] IRLR 116).

It is again necessary to note the factors referred to above are similar to/echo the factors seen in Selkent.

2.10 At all times material to this action the claimant has acted as a litigant in person. The fact that the claimant is a litigant in person, and he drafted his original claim form, without the benefit of any legal assistance, is a relevant factor but not determinative of any such application to amend a claim; although when considering what the claimant may have set out in the claim form and/or written in any subsequent relevant document/letter/pleading, the tribunal has to, insofar as possible, read any such document/letter/pleading in a non-technical/non-legalistic way. However, as Gillen LJ in the Court of Appeal recently said in the case of Moffatt - V - Moffatt [2014] NICS 68:-

“(41) This court recognises that litigants who are represented must not be prejudiced because the opposition is unrepresented. Indeed, we take this opportunity to endorse the views expressed by Kay LJ in Tinkler and Another - V - Elliott [2012] EWCA Civ 1289 where he said at paragraph 2:

“An opponent of a litigant in person is entitled to assume venality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that the litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him ... does not entitle him to extra indulgence.... The fact that if, properly advised, he would or might have made a different application that cannot avail him now. That would be to take sensitivity of the difficulties faced by a litigant in person too far”.”

2.11 As set out previously, it was not disputed the claimant had a claim of unlawful direct discrimination/harassment contrary to FETO. Ali - V - Office of National Statistics [2004] EWCA Civ 1363, has made clear claims of direct and indirect discrimination are different types of unlawful act; so a claim of discrimination by way of victimisation is also a different type of unlawful act and, if the claimant wishes to include any such claim in the rubric of his original claim, then it has to be the subject of an application for amendment.

3. In the course of his evidence, the claimant was challenged about what he had said at the Case Management Discussion on 1 September 2015, when there was discussion, as set out above, in relation to the identification of the claims made by the claimant pursuant to FETO, which had led to the identification of the claim of direct discrimination/harassment pursuant to FETO; and he had not made any reference to discrimination by way of victimisation pursuant to FETO. The claimant stated that, at that time, he was not aware of the distinction between direct discrimination and discrimination by way of victimisation. It would not be the first time that I have been faced with such an application by a litigant in person and, in particular, the lack of knowledge of the technical requirements of any such claim. Frequently, victimisation is referred to in a claim form, not in the “technical/protected act” sense but merely in the colloquial sense of “unfairness”. In this context, it has to be remembered the claimant had referred to victimisation because he was a male. He did not proceed with that claim, as set out above. I was not satisfied, following his evidence, his reference in the claim form was a reference to victimisation in the “technical/protected act” sense; but considered, at best, was a reference to “unfairness” in the colloquial sense. I am prepared to accept the claimant’s said explanation for his failure to make it clear that he was wishing to make a claim of direct discrimination/harassment pursuant to FETO, as well as a claim of discrimination by way of victimisation. I do so because the claimant informed me, that following the first discrimination Case Management Discussion on 1 September 2015 and before the next hearing which had been arranged for 27 November 2015, he went to obtain free legal advice from a firm of solicitors under some form of “green form” arrangement. The solicitors did not subsequently come on record but, in light of the solicitor’s advice, at the next hearing on 27 November 2015, the claimant expressly raised, as set out previously, the possibility of making a claim for discrimination by way of victimisation, pursuant to FETO. This has resulted in his application to amend his claim, the subject matter at this pre-hearing review. I have little doubt that, at the Case Management Discussion on 1 September 2015, the Vice President urged the claimant to obtain such legal advice/assistance as he was able to obtain. To the claimant’s credit, he did so and he consulted the said firm of solicitors at the beginning of November 2015. As a result he was, therefore, in a position to articulate at the further hearing on 27 November 2015 and in his subsequent documentation of 8 December 2015, his wish to make a claim of discrimination by way of victimisation, pursuant to FETO in addition to his claim of direct discrimination/harassment pursuant to FETO. However, as seen in the recent decision of Mist, even the failure to provide any such explanation would not be necessarily determinative of the matter.

3.1 I am satisfied, on the basis of the submission by the respondent’s representative, there is no “real” prejudice to the respondent if the said amendment is allowed. Of course, as in any situation where an amendment is granted, any such amendment will have to be “defended” by the respondent. However, that is not determinative of any such application. Indeed, I understand all relevant witnesses are available to the respondent to respond to the allegations, the subject matter of the proposed amendment. I have no doubt the proposed amendment is a substantial amendment.

Undoubtedly, the proposed amendment will require some more limited evidence to be produced than might have been the case prior to any such amendment and, in particular in relation to the “protected act” relied upon by the claimant, for the purposes of his victimisation claim. However, any such additional evidence will not, in my judgement significantly increase the amount of evidence which will require to be heard and determined by the tribunal or indeed the length of the hearing. Further, the facts relied upon by the claimant, for the purposes of his claim of discrimination by way of victimisation, subject to the matters set out above, will be largely the same evidence which will be relied upon by the claimant in relation to his other claims, including the factual issues leading up to his said dismissal (see Evershed and Ambercrombie).

3.2 In relation to the various categories set out in Harvey, as referred to previously, I am satisfied that these amendments fall into the second category - namely amendments which add or substitute a new cause of action, which is linked to or arise out of the same facts as the original claim. If I am correct, no issue of time arises. Even if I am wrong, and these are amendments which fall within the third category as set out in Harvey (wholly new claims or causes of action which are not connected to the original claim at all) my decision as set out below, would be no different. There is no doubt that the proposed amended claim is out of time. However, if it was necessary to determine whether time should be extended on just and equitable grounds, as set out in the recent legal authorities, including Ali and Thomson, there seems to be little distinction between what has to be considered under the just and equitable test and what has to be considered on the Selkent principles, referred to previously.

3.2 These issues are always difficult to determine, not least in carrying out the balancing exercise referred to by Mummary J in Selkent. Each case raises its own particular factual issues. However, after taking account of my conclusions as set out in the previous paragraphs, I have decided that, when considering the relevant injustice and hardship involved in granting and refusing the proposed amendment, the greater hardship and justice would be for the claimant.

3.3 Therefore I have decided that the claimant’s application for leave to amend his claim to include a claim of discrimination by way of victimisation, pursuant to FETO in relation to his dismissal by the respondent, in the terms set out in the opening paragraph of his letter dated 8 December 2015, received by the tribunal on 10 December 2015, should be granted; and the said claim is so amended. The respondent, if it wishes to present an amended response to the claimant’s claim, so amended, is ordered to do so within 28 days from the date this decision is issued to the parties.

3.4 A further Case Management Discussion will be arranged in due course, with the date and time to be notified to the parties, to give such further and/or amended case management directions/orders to enable this matter to be listed for a substantive hearing.

If either the claimant or the respondent wished to issue any further Notices for Additional Information and/or Discovery and Inspection, arising out of the amendment to the claimant’s claim against the respondent, any such notice must be issued and replied to promptly accordance with the rules of procedure and having regard to the date of the next Case Management Discussion.

4.1 During the course of this pre-hearing review, an issue arose whether the claimant was continuing with his claim of unfair dismissal contrary to the Employment Rights (Northern Ireland) Order 1996 on the basis that he had raised a health and safety related complaint. It was agreed at the hearing, and I so ordered, if the claimant was withdrawing that claim, he must notify the respondent’s representative, with copy to the tribunal by on or before 19 February 2016. I urged him to get such advice and assistance as he considered appropriate and necessary in the circumstances. It was also agreed, and I so ordered, if he was not withdrawing his claim, then he was required to reply to the respondent’s Notices for Additional Information, in relation to that issue, by on or before 26 February 2016.

4.2 In the record of proceedings, dated 30 November 2015, at paragraph 4(iii), the respondent was required to reply to the claimant by 15 January 2016 to any Notice for Additional Information and/or Discovery and Inspection issued by him before 11

December 2015. At this hearing, I was informed the respondent had not replied to the claimant’s said notices. It was agreed, and I so ordered, this must be done by 12 February 2016. I emphasised this was an order of the Tribunal and must be complied with and that time would not be extended, on application, in the absence of good reason.

Employment Judge:

Date and place of hearing: 5 February 2016, Belfast.

Date decision recorded in register and issued to parties:

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	Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> McCavana v Omniplex Holdings (N.I.) Ltd [2016] NIFET 00060FET (24 February 2016) URL: http://www.bailii.org/nie/cases/NIFET/2016/00060_15FET01017_15IT.html Cite as: [2016] NIFET 00060FET, [2016] NIFET 60FET

Fair Employment Tribunal Northern Ireland Decisions