Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   6815/09

 

 

 

CLAIMANT:                      Janine Thompson

 

 

RESPONDENT:                Nicolas McKenna & Company T/A The Galgorm Group

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

 

1(a)    The claimant’s claim form presented to the tribunal on 18 August 2009 did not include a claim of equal pay (like work) pursuant to the Equal Pay Act (Northern Ireland) 1970, as amended, and/or under European Law.

 

(b)    The tribunal orders that the claimant is given leave to amend her claim to include a claim of equal pay (like work) pursuant to the Equal Pay Act (Northern Ireland) 1970, as amended, and/or under European Law, in respect of the allegation that the claimant received the lower rate of remuneration on her sales than her male comparators; and the claim is so amended.

 

(c)    The tribunal orders that the respondent has leave to amend its response, insofar as it considers it necessary and appropriate by 31 March 2010, having regard to the amendment made by the claimant, as set out above.

 

2                 The tribunal orders, by consent, that the orders previously made by the tribunal, as set out in the Record of Proceedings, dated 21 January 2010, are varied in the following respects:-

 

(i)       The claimant will provide an amended schedule of loss to the respondent’s representative by 31 March 2010.

 

(ii)      An agreed bundle of documents will be lodged with the Office of the Tribunals by 7 April 2010.

 

(iii)            The respondent will provide to the claimant’s representative the agreed outstanding discovery by 26 March 2010.

 

(iv)           The hearing will be listed from:-

 

12 – 16 April 2010;

 

but, if the hearing does not conclude within the said period, the hearing will continue until it is concluded and amended Notices of Hearing will be issued to reflect the foregoing.

 

(v)        An amended statement of legal and main factual issues, taking account of the said amendments to the claim and response form, must be lodged with the Office of the Tribunals by 7 April 2010.

 

 

3        It was agreed the claimant’s claim form presented to the tribunal on 18 August 2009 included, for the avoidance of any doubt, a claim for breach of contract for outstanding commission. 

 

 

Constitution of Tribunal:

Chairman (sitting alone):           Mr N Drennan QC

 

Appearances:

The claimant was represented by Mr G Purvis, Barrister-at-Law, instructed by Babington & Croasdaile, Solicitors.

The respondent was represented by Mr J McKenna, Solicitor, of Eamon McEvoy & Company, Solicitors.

 

Reasons

 

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

 

(1)      Whether the claimant’s claim form presented to the tribunal on 18 August 2009 included:-

 

(a)      a claim for breach of contract for outstanding commission; and

 

(b)      a claim under Section 1 of the Equal Pay Act (Northern Ireland) 1970, as amended, and/or under European Law in respect of the allegation that the claimant received a lower rate of remuneration on her sales than her male comparators.

 

(2)            If the claim form did not include the claims referred to above, or either of them, whether the tribunal should grant leave to the claimant to amend her claim form to include the said claims or either of them.

 

1.2           The claimant’s representative had, by letter dated 18 February 2010, made application to amend the claim to include a claim of equal pay ‘on the basis that the claimant had received a lower rate of commission on her sales than her male comparators’.  During the course of submissions, at this hearing, Mr Purvis said that this had been set out in error and rather than ‘commission’ the letter should have referred to ‘remuneration’.  Subject to one matter, to which I shall refer below, there was no objection to the said amendment of the issue to enable it to refer to remuneration rather than commission, as set out above. 

 

1.3           It was agreed by the representatives that the claimant’s claim form presented to the tribunal on 18 August 2009 included a claim for breach of contract for outstanding commission.  In the circumstances, it was therefore not necessary for me to consider the claimant’s alternative application for leave to amend the claim to include a claim for breach of contract for outstanding commission.

 

1.4           The claimant’s representative confirmed that the claimant’s claim for equal pay, the subject-matter of this application, was a claim for like work, pursuant to the Equal Pay Act (Northern Ireland) 1970.

 

2.1           The claimant presented a claim to the tribunal on 18 August 2009, in which it was agreed she had made a claim for unfair dismissal, breach of contract, right to receive particulars of contract, right to receive itemised pay-slips and sex discrimination. 

 

2.2     It was therefore necessary for me to consider the first issue, set out above, which required to be determined by the tribunal, namely whether the claimant’s claim form presented to the tribunal on 18 August 2009 included:-

 

(a)      a claim of equal pay (like work) pursuant to the Equal Pay Act (Northern Ireland) 1970, as amended and/or under European Law.

 

          Mr McKenna did not accept that such a claim was included in the claim form.

 

2.2           There was no dispute 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).  The claimant did not tick at Paragraph 7.1 of the claim the box:-

 

‘Discrimination – equal pay’

 

In a recent decision of the Employment Appeal Tribunal, Mrs Justice Slade in the case of Baker  v  Commissioner of the Police of the Metropolis [UKEAT/0201/09] confirmed that a tribunal, where it is considering whether a particular claim is raised in a claim form, must read the claim form as a whole and not adopt a technical approach.  The failure to tick the said box 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 set out, had been in order to see whether the claimant’s claim form, presented to the tribunal on 18 August 2009, included a claim of equal pay, pursuant to the Equal Pay Act (Northern Ireland) 1970, as amended and/or under European Law.  In the course of his submissions, Mr Purvis referred, in particular, to various sub-paragraphs set out by the claimant in Paragraph 7 of the claim form, setting out the details of her various claims.  Those sub-paragraphs clearly identify, inter alia, a claim brought by the claimant of sex discrimination in relation to issues of remuneration paid to her in comparison to other male employees.  However, I was not satisfied that any claim of equal pay (like work), pursuant to the 1970 Act and/or under European Law had been set out in the said claim form.  Indeed, the failure to do so is consistent with the claimant’s representative seeking to amend her claim to include such a claim in the claimant’s representative’s letter dated 18 February 2010. 

 

3.1           In light of the foregoing, it was therefore necessary for me then to determine whether the tribunal should grant leave to the claimant to include a claim of equal pay (like work) pursuant to the 1970 Act and/or under European Law.

 

Under Rule 10(2)(q) of the Industrial Tribunals Rules of Procedure, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, a Chairman has power to give leave to amend a claim.  Under Regulation 3 of the said Regulations, it is provided the tribunal or Chairman shall seek to give effect to the overriding objective when it exercises any powers given to it or him by the Regulations, which includes the power under Rule 10(2)(q) of the Rules of Procedure to give leave to amend the claim. 

 

The overriding objective of the Regulations is to enable tribunals and Chairmen to deal with cases justly; and dealing with a case justly includes, so far as practicable:-

 

(a)      ensuring that the parties are on an equal footing;

 

(b)            dealing with the case in ways which are proportionate to the complexity and importance of the issue;

 

(c)            ensuring that it is dealt with expeditiously and fairly; and

 

(d)            saving expense.

 

As Girvan LJ stated in Peifer  v  Castlederg High School and Western Education & Library Board [2008] NICA 49, which has now been approved in the case of Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47, these overriding objectives should inform the court and tribunals in the proper conduct of proceedings, including the exercise of its powers under the Rules of Procedure, such as the power to give leave to amend the claim.

 

Harvey on Industrial Relations and Employment Law, Volume 5, Division T, Paragraphs 311 – 312.04, deals with amendments to claims and, in particular, sets out three relevant categories of amendment:-

 

“(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 one which is linked to, or arises out of, the same facts as the original claim; and

 

(iii)            amendments which add or substitute a whole new claim or cause of action, which is not connected to the original claim at all.”

 

There was no dispute between the representatives that the claimant’s claim of equal pay (like work) was a new cause of action.  However, Mr Purvis submitted that it was one which was linked to, or arose out of, the same facts as the original claim.  Mr McKenna did not, in the course of his submissions, suggest otherwise.

 

3.2           Having considered in some detail the details of the claimant’s claim of sex discrimination, as referred to above, relating to the alleged lower rate of remuneration on her sales paid to her by the respondent than her male comparators, I came to the conclusion that, although the claimant’s claim of equal pay (like work) was a new cause of action it was one which was linked to and/or arose out of, the same facts as the original claim.  There is no doubt that there can be some overlap between a claim of sex discrimination, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 and a claim under the Equal Pay Act (Northern Ireland) 1970, as amended.  Indeed, it is not unusual to find, when a claim is originally set out in a claim form, that claims under the 1976 Order and/or under the 1970 Act are pleaded in the alternative.  However, whenever any such alternative claims come to be determined by the tribunal, it is necessary for the parties to have regard to the provision of Article 8(3) and Article 11 of the 1976 Order.  As Phillips J, as he then was, confirmed in the case of Peake  v  Automotive Products Ltd [1997] IRLR 105, that the complaint, in that case, did not relate to the payment of money or a matter regulated by the contract of employment; and therefore the claim was a claim of sex discrimination not equal pay.  For the purposes of this application, it is not necessary for me to consider in any further detail whether the claimant may still have a claim of sex discrimination, pursuant to the Sex Discrimination (Northern Ireland) Order 1976; but merely to be satisfied that the claimant insofar as she is making a claim of equal pay (like work), pursuant to the Equal Pay Act (Northern Ireland) 1970, as amended, relating to the alleged lower rate of remuneration on the claimant’s sales, in comparison to her male comparators, is a claim which is linked to, or arises out of, the same facts as set out by the claimant, in relation to the whole or part of her claim of sex discrimination.  I am satisfied that she has done so.  In essence, having regard to Article 8(3) and 11 of the 1976 Order, the claim of equal pay should have been pleaded as a claim pleaded in the alternative to her claim of equal pay.  Mr McKenna frankly and fairly did not suggest otherwise; and, indeed, he did not raise any objection to the claimant’s application for leave to amend her claim to include a claim of equal pay. 

 

Since I was satisfied that the claimant’s claim fell within the second category of amendment, referred to in Harvey on Industrial Relations and Employment Law, it was not necessary for me to have any regard to the time-limit for bringing of any such claim.  Indeed, as set out in Harvey (Paragraph 312.04) it is only in respect of amendments falling into the third category – entirely new claims unconnected with the original claim as pleaded – that the time-limits require to be considered.

 

In the Transport & General Workers Union  v  Safeways Stores [2007] ARE (D) 14, Underhill J reviewed all the relevant authorities, in relation to the issue of amendment and the exercise of the tribunal’s discretion, even where the claim was out of time.  Having reviewed the authorities he emphasised that:-

 

“A tribunal has a discretion in any case to allow an amendment which introduces a new claim out of time.”  (Paragraph 7)

 

“There is no absolute rule an amendment must be refused because the new claim would be out of time.  It is one factor to be considered by the tribunal in the exercise of its discretion, albeit important and potentially decisive in the exercise of the discretion.”  (Paragraph 10)

 

In the circumstances, as set out above, it was not necessary for me to consider this issue further.

 

3.3           Both representatives accepted that the tribunal had a discretion whether to grant leave I considered the fact that both representatives were in agreement in relation to the application for leave, was a factor, albeit it a strong factor, in relation to whether the tribunal should grant a discretion to amend the claim; but it was not a determinative factor.

 

The classic guidance in relation to the exercise of the discretion to grant leave to amend a claim is still to be found in the judgment of Mummery J, as he then was, in the case of Selkent Bus Company  v  Moore [1996] ICR 836, which was endorsed by the Court of Appeal in Ali  v  Office of National Statistics [2005] IRLR 201.

 

Mummery J held, in particular, that:-

 

“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.”

 

The authorities and, in particular, Selkent would suggest that the circumstances to be taken into account in relation to any such amendment application may vary according to each case; but it also suggests that there are certain particular matters that will normally require to be considered, namely:-

 

(i)              the nature of the application itself, ie it is minor or substantial;

 

(ii)             time-limits, if applicable and relevant;

 

(iii)            the timing and manner of the application – although a delay in itself should not be the sole reason in refusing an application, the tribunal should nevertheless consider why it was not made earlier and why it is now being made, for example whether it was because of the discovery of new facts or new information appearing from documents disclosed in discovery.

 

In each case, as Mummery J emphasised in Selkent, the paramount consideration still remained the relevant injustice and hardship involved in refusing or granting an amendment.  However, 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.  As the Baker case confirms, an application, which is made late in the proceedings, is but one of the considerations to be taken into account in determining an application to amend. 

 

3.4           The claimant’s proposed amendment is not a mere technical amendment and, in my judgment, is a major amendment, involving the bringing of a new claim.  However, I am satisfied that, although the application should have been made at an earlier date, that there is no prejudice caused by the fact that the application was not made until shortly before the commencement of this case – since, in connection with the claimant’s claim of sex discrimination, the parties have dealt with most of the interlocutory issues, which also arise in relation to the claimant’s claim of equal pay.  Further, the representatives remain satisfied that, even with the inclusion of the claimant’s alternative claim of equal pay, the proceedings should be able to be concluded within the period previously arranged for the hearing of this matter.  I understand, subject to some minor matters relating to discovery, which will be swiftly concluded by agreement between them, that this matter will be able to commence on 12 April 2010.  A significant factor, in my judgment, was also the absence of any objection by the respondent’s representative to the said application.

 

As the test in Selkent makes clear the paramount considerations are the relevant injustice and hardship involved in refusing or granting an amendment.  Balancing the matters set out in the preceding paragraphs, I concluded the greater injustice and hardship involved would be to the claimant, if the application was refused. 

 

4.       I therefore decided to make an order granting the claimant leave to amend the claimant’s claim to include a claim of equal pay (like work) pursuant to the Equal Pay Act (Northern Ireland) 1970, as amended and/or European Law, in respect of the allegation that the claimant received a lower rate of remuneration on her sales than her male comparators and the claim is so amended.  I considered that to do so, in the circumstances was in accordance with the terms of the overriding objective. 

 

5.       In deciding to grant leave to amend the claimant’s claim, as set out above, I did consider whether it was necessary for me to consider further whether the claimant had complied with the statutory grievance procedures, pursuant to the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004; and if not, whether the tribunal could still allow the amendment and/or whether such a failure was merely a factor to be taken into consideration or whether there was an absolute bar to an application for amendment.  (See further the decision of Underhill P in Evershed  v  New Star Asset Management [2009] UKEAT/0249/09.)  In the event, it was not necessary for me to consider this issue further since the respondent’s representative informed me, having had the opportunity to consider his position, that the respondent would not be raising any issue, in the proceedings, that the claimant had not complied with the statutory grievance procedures in relation to the amended claim. 

 

6.       Having amended the claimant’s claim, as set out above, I made an order granting leave to the respondent to amend its response, insofar as it considered necessary and appropriate, having regard to the said amendment.  The date for compliance with the said order is 31 March 2010.

 

7.       I further ordered, by consent, that the orders made by the tribunal, set out in the Record of Proceedings, dated 21 January 2010, are varied in the various following respects:-

 

(i)         The claimant will provide an amended schedule of loss to the respondent’s representative by 31 March 2010.

 

(ii)        An agreed bundle of documents will be lodged with the Office of the Tribunals by 7 April 2010.

 

(v)                The respondent will provide to the claimant’s representative the agreed outstanding discovery by 26 March 2010.

 

(vi)               The hearing will be listed from:-

 

12 – 16 April 2010;

 

but, if the hearing does not conclude within the said period, the hearing will continue until it is concluded; and amended Notices of Hearing will be issued to reflect the foregoing.

 

(iv)               The representatives recognised that, in light of the said amendment and any response thereto, an amended statement of legal and main factual issues would require to be agreed between the parties, including, whether or not the respondent was relying upon any genuine material factor defence and, if so, the relevant factual issues relating thereto and will also have to clarify which of the claimant’s claims, and factual issues, relating thereto, are claims of sex discrimination and which of the claimant’s claims are of equal pay (like work), having regard to Article 8(3) and 11 of the 1976 Order.  An amended statement of legal and main factual issues, taking account of the said amendments to the claim and response form, must be lodged with the Office of the Tribunals by 7 April 2010.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:         19 January 2010, Belfast

 

 

Date decision recorded in register and issued to parties: