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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kijowska v Belfast Health and Social Care... [2016] NIIT 01149_15IT (10 February 2016) URL: http://www.bailii.org/nie/cases/NIIT/2016/01149_15IT02390_15IT.html Cite as: [2016] NIIT 1149_15IT, [2016] NIIT 01149_15IT |
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 1149/15
2390/15
CLAIMANT: Agnieszka Alina Kijowska
RESPONDENTS: 1. Belfast Health and Social Care Trust
2. Margaret Johnston
3. Neil O’Hagan
4. Maureen Coyle
5. Moya Delaney
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is as follows:-
1. The claims of the claimant, and each of them, did not include a claim for race discrimination and/or a claim for unfair constructive dismissal arising from the termination of a claimant’s employment, as set out in the claimant’s letter to the respondents’ representative dated 20 October 2015.
2. The claimant’s application for leave to amend her claim (case reference 2390/15) to include a claim of race discrimination and/or unfair constructive dismissal arising from the termination of the claimant’s employment, as set out in the claimant’s letter to the respondents’ representative dated 20 October 2015 is granted and the said claim is so amended. The respondents, and either of them, if they wish to present an amended response to the claimant’s claim, so amended, are ordered to do so within 28 days from the date this decision is issued to the parties.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Drennan QC
Appearances:
The claimant appeared in person and was not represented.
The respondents were represented by Mr P Ferrity, Barrister-at-Law, instructed by Directorate of Legal Services.
REASONS
1. For the reasons set out in the record of proceedings, dated 3 December 2015, of a Case Management Discussion which was held on 1 December 2015, this pre-hearing review was directed to be listed to determine the following issues, namely:-
“(i) Whether the claims of the claimant, or either of them, include a claim for race discrimination and/or a claim for unfair constructive dismissal arising from the termination of the claimant’s employment, as set out in the claimant’s letter to the respondents’ representative, dated 20 October 2015.
(ii) If not, whether the tribunal should grant leave to the claimant to amend her said claims, or either of them, to include the said claims, as referred to in paragraph 1 above”.
2. The claimant presented her first claim (case reference 1149/15) to the tribunal on 11 June 2015. In that claim, she made a claim for race discrimination. In the course of the said claim form, the claimant referred to the fact that on 4 June 2015 she got a letter that she was suspended. At the date, when the claimant presented her claim to the tribunal, it was therefore clear that her employment with the first respondent had not been terminated. In paragraph 9.1 of the claim form, the claimant stated “I will be leaving for London at the end of the month August 2015 as got accepted into University of London. ...”
3. There was no dispute that, by letter dated 27 July 2015, the claimant wrote to the first respondent terminating her employment with effect from 31 August 2015.
4. Under the tribunal’s normal Case Management Procedures, a discrimination Case Management Discussion was arranged to give relevant case management directions/orders to enable the claimant’s claim (case reference 1149/15) to be progressed to a substantive hearing. The Case Management Discussion was heard on 1 October 2015. The claimant was allowed to attend using the telephone conference facilities, as she was by this time based in London. At all times the claimant has been a litigant in person.
5. As stated in paragraph 2 of the record of proceedings of that hearing, dated 2 October 2015, it was stated, insofar as relevant to the determination of the issues, the subject matter of this pre-hearing review:-
“Shortly before the commencement of this hearing, the claimant sent an email, dated 1 October 2015 to the tribunal, with copy to the respondents’ representative, setting out further allegations in relation to matters which occurred since the termination of her employment, following her resignation on or about 31 August 2015. Firstly, the claimant confirmed that she is not making any claim of unlawful racial discrimination arising out of the termination of her said employment. She accepts she resigned in order to accept her place at the University in London. However, in relation to the matters set out in this said email, the claimant also confirmed that she accepts the Belfast Health and Social Care Trust have now paid her the money she was seeking, referred to in the said email, but she wishes to bring a claim for race discrimination (in error stated to be age discrimination) in relation to the matter set out in the said email relating to such failure to pay. It was not clear to me whether the claimant is bringing a claim of direct unlawful race discrimination and/or discrimination by way of victimisation in relation to these allegations. It is not for me advise the claimant she must seek such advice and assistance as she is able to obtain in order to ensure that in relation to these matters she sets out clearly the nature, legal and factual, of the claim that she is bringing. In her said email, the claimant has sought to amend the present proceedings to claim these further additional matters. The respondents’ representative objected on the grounds that it was not clear the precise claims that the claimant was making, as referred to above; but, in particular, given that the events the subject matter of the said email occurred after the issue of the present proceedings. Although there is some authority which allows such an amendment to be granted, albeit after the issue of the initial proceedings, I concluded that, in the circumstances, it was more appropriate that the claimant presented to the Office of the Tribunals a “new” claim form in relation to these further matters set out in the said email. At present there is no issue of time, as all these events occurred in the period since 31 August 2015 and the date of this hearing. In the circumstances, it was agreed, and I so directed, that if the claimant wished to bring any further claims in relation to the matters set out in the said email, then she must present to the Office of the Tribunals a “new” claim form by on or before 22 October 2015. In order to assist the claimant, it was agreed that the Office of the Tribunals would send to her a “blank” claim form, together with a copy of the tribunal’s booklet, in order to allow her to present such a further claim to the Office of the Tribunals, as agreed, by 22 October 2015. Following the presentation of any such “new” claim, the respondents will, of course, be entitled to present a response to any such claims in the normal way in accordance with the relevant Rules of Procedure”.
6. In the event that such a further claim was brought by the claimant, it was agreed by the claimant and the respondents’ representative that I should then, in such circumstances, make a consolidation order, pursuant to Rule 10(2)(i), allowing both sets of proceedings to be considered together.
7. On 9 October 2015, the claimant presented to the tribunal a further claim, which was given the case reference number 2390/15, in which she made a claim of race discrimination in relation to the failure by the respondents to make certain payments to her following the termination of her employment with the first respondent. (my emphasis).
8. A Consolidation order, dated 14 October 2015 was made in relation to both claims, as directed set out above.
Further, by an email dated 20 October 2015, copied to the Tribunal, the claimant wrote to the respondents’ representative in which she stated she was making a claim of unlawful racial discrimination and/or unfair constructive dismissal arising from the termination of her employment with the first respondent, for the reasons and in the circumstances, as set out in her letter to the respondents’ representative dated 20 October 2015.” (my emphasis)
9. At a further Case Management Discussion on 1 December 2015, as set out in the record of proceedings dated 3 December 2015, the tribunal referred to these matters, and in particular the matters set out in the claimant’s letter dated 20 October 2015, which appeared to be in direct contrast to what she had stated at the Case Management Discussion on 1 October 2015 and also what had been claimed in the second claim lodged with the tribunal, as referred to above, on 9 October 2015.
10. In particular, as referred to in the record of proceedings at paragraph 9 of the Case Management Discussion on 1 December 2015, it was stated:-
“As referred to in the Record of Proceedings dated 2 October 2015, and, particular Paragraph 2 of that record, the claimant sent an email dated 1 October 2015 to the Office of the Tribunals, with copy to the respondents’ representative, setting out further allegations in relation to matters which had occurred since the termination of her employment, following the effective date of her resignation on or about 31 August 2015. As noted in the record, at the Case Management Discussion, the claimant confirmed that she was not making any claim of unlawful racial discrimination arising out of termination of her said employment, accepting that she had resigned in order to accept her place at the University in London. The claimant, in accordance with the directions set out in paragraph 2 of the said record then issued a further claim, which presented to the Office of the Tribunals on 9 October 2015, claiming race discrimination, which was given the Case Reference No: 2390/15. As set out later, it will be necessary to consider at a further hearing, in more detail, the terms of the claimant’s claims to the Office of the Tribunals and, if necessary and appropriate, also what she stated at the last Case Management Discussion, as set out in the said Record of Proceedings and referred to above. In an email dated 20 October 2015, to the respondents’ representative, which was copied to the tribunal, the claimant now appears to be making a claim of race discrimination arising out of the termination of her said employment and/or a claim of unfair constructive dismissal when she resigned, as set out above. It was not for me, at this Case Management Discussion, for the reasons set out later, to reach any determination in relation to these matters and/or their relevance, if any. In particular, the respondents’ representative strongly submitted that the claimant had not previously raised in any of her claims to the tribunal any claim for race discrimination arising out of the termination of her said employment and/or any claim for unfair constructive dismissal. In addition, the respondents’ representative stated that, if no such claim had previously been raised by the claimant, then the claimant would have to make an application for leave to amend her said claim, to include such claims, based on the allegations set out in her letter dated 20 October 2015; and, if such application was made the respondents’ representative would object to same ....”
11. In light of the foregoing, and given the respondents’ representative’s objection, this pre-hearing review was arranged to consider and determine the issues, as set out above.
12. In determining the issues, as set out in the previous paragraph, the following legal principles, in my judgement, were relevant to same, as set out in the following sub-paragraphs.
12.1. 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 ... .”
12.2 In Harvey on Industrial Relations and Employment Law, Volume 4, Section P1, it has been helpfully stated:-
“311.03 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.
12.3 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 distinction, 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 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:-
‘(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).)
12.4 If a claim is in time, or the tribunal considers time 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, gives rise therefore to potentially 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.
12.5 Interestingly, in this context, the fact 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 o 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.”
12.6 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.
13. I have considered very carefully the contents of both of the claim forms presented by the claimant (case reference 1149/15 and 2390/15), to see if it is possible to discern, from what has been stated by the claimant in those claim forms or either of them, a claim of race discrimination and/or a claim of unfair constructive dismissal arising from the termination of a claimant’s employment, as set out in the claimant’s letter to the respondent’s representative dated 20 October 2015. In doing so, I took into account the claimant is a litigant in person and therefore drafted the said claims herself. I am also satisfied that, in carrying out this exercise, the whole of each claim form must be considered and, insofar as possible, it should be read in a non-technical/non-legalistic manner. At the date of the presentation of the claimant’s first claim on 11 June 2015, the claimant was suspended and she did not give notice of her resignation until 27 July 2015, to be effective on 31 August 2015. In the circumstances, it is not surprising, and I so conclude, that the first claim (case reference 1149/15) did not include any such claim of race discrimination and/or unfair constructive dismissal arising from the termination of her employment. (My emphasis). It is apparent from the proposed amended claims, and as confirmed by the claimant during the course of her submissions at this Pre-Hearing Review, that the events/actions set out in the said first claim form are of relevance to what occurred in relation to the said termination, when it occurred. However, this does not mean, in my judgment, any such claim, relating to that termination, has been included in the first claim form (see later).
14. In the claimant’s second claim form (case reference 2390/15), having carried out a similar exercise to that carried out in relation to the first claim form, again I have come to the conclusion that no claim of race discrimination and/or unfair constructive dismissal had been included in that second claim form. The focus of the second claim form is on the failure to make relevant payments by the respondents, following the claimant’s said resignation and termination of her said employment.
15. The claimant, in the course of her submissions, pointed to the last paragraph of her claim form, in which she stated:-
“I feel that I was racially discriminated again (my emphasis) by my former
manager Mrs Margaret Johnston”.
In my judgment, this sentence has to be read in context and, in particular, having regard to the rest of the claim form, with its focus on the non-payment and not the termination itself. It therefore cannot be relied upon by the claimant to establish her second claim form included a claim of race discrimination and/or unfair constructive dismissal arising from the termination of her said employment.
16. In view of my conclusion, as set out in the previous paragraphs, that neither of the claimant’s said claims presented to the tribunal included a claim of race discrimination and/or unfair constructive dismissal arising out of the termination of the claimant’s employment, it was therefore necessary for me to consider the proposed amendments as set out in the claimant’s letter to the respondent’s representative dated 20 October 2015. It cannot be disputed the focus of the terms of the said letter relate to the said termination, in contrast to the focus in the second claim, as referred to previously. In determining whether I should grant leave to the claimant to amend his said claims, or either of them, it was necessary for me to do so in accordance with the Selkent principles, as referred to and interpreted in the legal authorities referred to previously in this decision. Given that, at the date of the presentation of the claimant’s first claim, the claimant’s employment was continuing and she had not given her resignation by that date, I am satisfied, if any such leave is to be granted, on the foot of the claimant’s application, it must be in relation to an amendment of the second claim (case reference 2390/15), and not the first claim (case reference 1149/15).
17. I am satisfied, on the basis of the submissions by the respondents’ representatives, there is no “real” prejudice to the respondents 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 respondents. However, that is not determinative of any such application. Indeed, I understand all relevant witnesses are available to the respondents to respond to the allegations, the subject matter of the proposed amendment. The fact the first respondent, as a public health trust, is able to afford financially to defend the claim, if amended, does not appear to me to be of any relevance or significance in determining this application by the claimant. I have no doubt that the proposed amendment is a substantial amendment.
18. Undoubtedly, the proposed amendment will require some more evidence to be produced than might have been the case prior to any such amendment. However, I am satisfied that much of the evidence, and/or the thrust of same, the subject matter of the first claim, will also be relied upon by the claimant in relation to the proposed amended claims. Therefore, the granting of leave to amend will not, in my judgment, significantly increase the amount of evidence which will require to be heard and determined by the tribunal or indeed the length of the hearing (see Evershed and Abercrombie).
19. I think it must also be noted that, given the effective date of termination of the claimant’s employment was 31 August 2015, when the claimant wrote her letter of 20 October 2015, she was still in time to make a claim in relation to that termination of her employment. In view of my conclusions in relation to this application, as set out below, it was not necessary for me to consider further whether the claimant’s letter of 20 October 2015 could have been treated by the tribunal as a “valid third claim”.
20. The matter that gave me considerable concern in determining this application was the fact that the claimant, as set out previously, at the Case Management Discussion on 1 October 2015, as recorded in the record of proceedings dated 2 October 2015, had confirmed that she was not making any claim of unlawful racial discrimination arising out of the termination of her said employment and that she also accepted she resigned in order to accept her place at the University of London. In fairness to the claimant, at this Pre-Hearing Review, she did not attempt to dispute or deny the accuracy of the record in relation to what she had said at the said Case Management Discussion. However, she strongly maintained she had misunderstood the question she had been asked by me, when she so responded. Indeed, she said that she had wondered, in the days following the Case Management Discussion, which it must be remembered was held by way of telephone conference from her home in London, whether she had expressed herself correctly during the course of the Case Management Discussion; as she always believed what had been the subject matter of her first claim had led to her subsequent termination of employment. It may be that all these matters will require to be further considered at the substantive hearing and, in particular, the reasons why the claimant resigned. I, therefore, do not think it is appropriate to say more; save that, in essence, I am satisfied the claimant is contending her answer, as recorded in the record of proceedings, was wrong/mistaken. The record of proceedings, setting out the “wrong/mistaken answer, was sent to the claimant by letter dated 7 October 2015. But it has to be noted the second claim form was signed by the claimant on 8 October 2015 and received by the tribunal on 9 October 2015. It was not clear to me, during the course of the submissions, whether the claimant had actually received and considered in sufficient detail the record of proceedings, before drafting and sending to the tribunal the second claim form. In the circumstances, I am not satisfied that it is necessary for me to reach any conclusion on this particular matter. However, what is significant in my judgment is that, within a relatively short period thereafter, namely by 20 October 2015, the claimant had clearly realised her previous answer, as recorded, was wrong/mistaken. This has resulted in this application for leave to amend at this Pre-Hearing Review. I also take into account, as set out in Mist and Selkent, failure to explain the delay would not be determinative of the application. In this case, there is an explanation - a wrong/mistaken answer made by a litigant in person. My conclusion might have been different if the answer had been given by a legal representative.
21. 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/causes of action which are linked to or arise out of the same facts as the original claim. As I stated previously, the claimant is seeking to rely on the facts set out in the first claim, in particular, as a basis for alleging the dismissal was discriminatory and/or an unfair constructive dismissal. If I am correct, no issue of time arises. Even if I’m 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. Further, the letter, the subject matter of this application was made within time, namely within three months of the effective date of termination. Therefore, it was also not necessary to consider whether time should be extended in relation to the proposed amendments. In this matter, in the circumstances outlined above, I think of particular significance and relevance to the claimant’s application is the dicta of Underhill J in the case of Evershed at paragraph 30 of his judgment, as referred to above, relating to the issue of mistake in the context of amendment.
22. These issues are always difficult to determine, not least in carrying out the balancing exercise referred to by Mummery J in Selkent. This case is no different, not least given the claimant’s assertion at the Case Management Discussion on 1 October 2015 that she was not making an allegation of discriminatory dismissal but now states that that assertion was wrong/mistaken. However, after taking account of my conclusions as set out in the previous paragraphs, I have decided that, in considering the relevant injustice and hardship involved in granting and refusing the proposed amendments, that the greater hardship and injustice would be for the claimant.
23. Therefore I have decided that the claimant’s application for leave to amend her second claim (case reference 2390/15) to include a claim for race discrimination and/or a claim for unfair constructive dismissal, arising from the termination of the claimant’s employment, as set out in the claimant’s letter to the respondent’s representative dated 20 October 2015, should be granted; and the said claim is so amended. The respondents and either of them, if they wish to present an amended response to the claimant’s claim, so amended, are ordered to do so within 28 days from the date this decision is issued to the parties.
24. A further Case Management Discussion is to be held in this matter at 9.30 am on 26 February 2016, as set out in the record of proceedings of the Case Management Discussion held on 27 January 2016, dated 2 February 2016, in order to give, insofar as possible at that time, relevant Case Management directions/orders for the substantive hearing of the claimant’s claims, as now amended. Having regard to the terms of the overriding objective, parties should issue, if they require to do so, any further Notices for Additional Information and/or Discovery and Inspection in accordance with the relevant Rules of Procedure, in relation to the said second claim of the claimant, as now amended. Any such Notices should be issued and replied to promptly.
Employment Judge:
Date and place of hearing: 27 January 2016, Belfast.
Date decision recorded in register and issued to parties:
