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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Thompson v Maybin Property Support Services (NI) Ltd [2007] NIIT 146_05 (20 March 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/146_05.html Cite as: [2007] NIIT 146_5, [2007] NIIT 146_05

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 765/04

1806/04

2428/04

146/05

CLAIMANT: James Robert Thompson

RESPONDENT: Maybin Property Support Services (NI) Limited

DECISION ON A PRE HEARING REVIEW

The decision of the Tribunal is that Invest NI and Oliver Corr should be joined as Respondents in Case References 765/04, 1806/04, 2425/04, 146/05.

Constitution of Tribunal:

Chairman (sitting alone): Mr Patrick Kinney

Appearances:

The Claimant was represented by Miss Higgins QC instructed by Campbell & Caher, Solicitors.

The Respondent was represented by Mrs Rooney of Carson McDowell, Solicitors.

Invest NI and Mr Oliver Corr were represented by Mr B Mulqueen, Barrister-at-Law, instructed by Cleaver Fulton Rankin, Solicitors.

Issues to be Decided:-

1. Issues to be Decided

1. Whether Invest NI and Oliver Corr should be joined as Respondents to the proceedings.

2. Sources of Evidence

The Tribunal heard submissions on behalf of the parties and considered documents referred to it.

3. Findings and Fact

1. The Claimant has issued four claims against the Respondent which are to be considered and heard together.

2. The first 765/04 was lodged in the Office of Industrial Tribunals on 22 March 2004. In it the Claimant claims disability discrimination and specifically names Mr Corr who is an employee of Invest NI and details events in Invest NI’s premises where the Claimant worked as a Security Guard employed by the Respondent.

3. The second 1806/04 was lodged in the Office of Industrial Tribunals on 14 June 2004. In it the Claimant claims victimisation. He again names Mr Corr and alleges actions taken by Mr Corr.

4. The third 2428/04 was lodged in the Office of Industrial Tribunals on 2 September 2004 and again claims victimisation. The claim form does not refer to Invest NI or Mr Corr.

5. The fourth 146/05 was lodged in the Office of Industrial Tribunals on 10 January 2005. In it the Claimant claims victimisation and fundamental breach of contract. Again the claim form does not refer to Invest NI or Mr Corr.

6. Mr David Huxley, divisional manager of the Respondent, wrote to the Claimant on 24 December 2004. In that letter he states;

“As you are aware, our customer who is effectively the custodian of the site where you worked, has instructed us that they do not require your services any longer, and wish for you to be removed from site. We have no alternative but to comply with this direct instruction, even though we are vehemently opposed to their decision.”

7. Mr Huxley wrote to Mr Oliver Corr at Invest NI’s premises at 17 Antrim Road, Lisburn, where the Claimant was employed, on 12/01/05. In that letter Mr Huxley states;

“As you are aware this man was employed by our company to provide security services at your premises and was subsequently removed from his position on your explicit instructions.

Despite our best efforts to secure alternative employment for Mr Thompson, he has now instigated legal action in respect of your Instructions to remove him from his post. It is imperative we establish that, due to your decisive and over-riding influence in these events, we, as his employer had no alternative but to remove him. We therefore requested you provide, as a matter of urgency, written confirmation of your verbal instructions that Mr Thompson was not to continue in his employment at your premises.

It is possible that both your organisation and ours will be joined as Defendants in a legal action as Mr Thompson attempts to recover what he considers to be a loss of income and reputation. Verification of your instructions in writing at this stage will help both organisations respectively to organise their Defence, to prevent a long and protracted investigation and ultimately in the mitigation of potential damages.”

On 27/03/06 the Claimant’s Solicitors wrote to the Office of Industrial Tribunals seeking to join Invest NI and Oliver Corr as Respondents.

4. The Law

1. The Tribunal was referred to Harvey on Industrial Relations and Employment Law, Division T, paragraphs 311ff and also to relevant case law.

Harvey at paragraph 313 sets out the correct procedure to be adopted by a Tribunal in cases where it is sought to amend the proceedings by inter alia adding Respondents. It quotes Sir John Donaldson in Cocking -v- Sandhurst (Stationers) Limited [1974] ICR 650. This guidance includes at paragraph 7;

“…in deciding whether or not to exercise their discretion to allow an amendment, the Tribunal should in every case have regard to all of the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused.”

At paragraph 314 Harvey goes on to refer to the case of British Newspaper Printing Corporation (North) Limited -v- Kelly [1989] IRLR 222 and states;

“…in Kelly the Court of Appeal endorsed the injustice/hardship test set out in paragraph 7 of the above passage and held that, as there are no statutory time limits for applying for leave to amend, Tribunals ought not to refuse leave simply on grounds of delay.”

5. Decision

The Tribunal has a discretion to join Invest NI and Mr Oliver Corr to the proceedings. Judicial discretion should be exercised;

“…in the manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.” per Mummery J in Selkent Bus Company Limited -v- Moore [1996] IRLR 661.

Although there was delay in bringing this application the Tribunal does not find that there is, on balance, a greater hardship and prejudice to the proposed Respondents in joining them to proceedings, than in denying the Claimant the opportunity to make his case against the appropriate Respondent. Delay is only one matter to which to Tribunal should have regard.

Although the application to join Invest NI and Mr Oliver Corr as Respondents was not made until 27/03/06 some two years after the first claim was lodged, Invest NI and Mr Corr had been made aware by the Respondent of the potential for their involvement in legal proceedings, at the latest by the letter from Mr Huxley to Mr Corr on 12 January 2005.

Similarly, although neither Invest NI nor Mr Corr are named by the Claimant directly in the claims numbered 2428/04 and 146/05 it is clear that the Respondent felt that they had played a significant role which again was addressed to them at the latest in Mr Huxley’s letter.

The Tribunal must balance the potential prejudice and injustice to Invest NI and Mr Corr in being joined in these proceedings against the potential prejudice and injustice in preventing the Claimant making his case against the appropriate Respondent. The present application was not the first knowledge that Invest NI and Mr Corr had of proceedings or the potential for proceedings, which was made clear in the letter from the Respondent to Mr Corr on 12 January 2005.

The Tribunal therefore, having balanced all the relevant factors and competing interests, and on the basis of the information before it, has decided to exercise its discretion to join Invest NI and Mr Oliver Corr in all four claims. The Tribunal therefore orders that Invest NI and Oliver Corr be joined as Respondents in claims 765/04, 1806/04, 2428/04 and 146/05.

Chairman:

Date and place of hearing: 17 January 2007, Belfast

Date decision recorded in register and issued to parties: