Boomer v Robert J Hall Ltd & Ors  (Preliminary Issue Amending IT1)  (29 October 2003)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	3744/01

APPLICANT:		Mark Boomer

RESPONDENTS:		1.	Robert J Hall Limited
2.	Mark Carlisle
3.	Andrew Brawley

DECISION

The unanimous decision of the Tribunal is to dismiss the application of the applicant to amend his Originating Application to include a claim of racial discrimination.  The Originating Application will be re-listed for the hearing of the applicant’s claim of unfair dismissal.
Appearances:
The applicant was represented by Peter Fitzmaurice of the Law Centre (NI).
The first respondent was represented by Barry Mulqueen, Barrister-at-Law, instructed by Arthur Cox Northern Ireland, Solicitors.
The second and third respondents were represented by Eamon McDaid, Trade Union Official.

1.	At the commencement of the proceedings, Mr McDaid made an application to extend time for entering an appearance on behalf of the second respondent.  The second respondent had only recently instructed him.  The second respondent had left the employment of the first respondent and his Trade Union and recently re-joined the said Union.  His defence, as set out in a draft Notice of Appearance, was in the same terms as the Appearance of the third respondent, whom Mr McDaid also represented.  There was no objection to the application by the other parties.  In the circumstances the Tribunal decided to grant an extension of time to enter an Appearance to 29 October 2002.  A Notice of Appearance was then entered on behalf of the second respondent, who was represented by Mr McDaid.

2.	(a)	The above application was listed to consider the following preliminary issue:

“Whether the applicant’s Originating Application is capable of amendments to include a claim of racial discrimination”.

(b)	The parties’ representatives agreed that, firstly, it was necessary for the Tribunal to determine the type of amendment proposed in particular in light of the three categories set out in Harvey on Industrial Relations and Employment Law Volume 5(T311.03), namely:-

“(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 wholly new claim or cause of action which is not connected to the original claim at all”.

(c)	In Paragraph 11 of the Originating Application it was stated that the claim was for unfair dismissal.  The claim was made only against the applicant’s employer.  The applicant, when he made his said application was represented by a Solicitor, who came off record by letter dated 20 February 2002.  Mr Fitzmaurice came on record by letter dated 6 March 2002 and by letter dated 26 March 2002 sought this application to amend and also the joinder in the proceedings of the second and third respondents.  The second and third respondents were joined by Order dated 11 April 2002.

(d)	Mr Fitzmaurice in connection with his said application to amend the proceedings to include a claim for racial discrimination relied on the following matters set out in Paragraph 13 of the applicant’s Originating Application:-

“ … Thereafter I made complaints that I was being harassed by Mark Carlisle and Andrew Brawley.  Management took no action.  I made further complaints regarding the same two men who continued to harass me because of (among other things) my English accent … I was suspended pending investigation … On 6 September I was dismissed without reason.  I believe I have been victimised and used as a scapegoat by the respondent company”.

Mr Fitzmaurice accepted that the applicant was not alleging that he had been unlawfully discriminated against on the grounds of race in relation to his dismissal, but stated the central issues related to the racial harassment itself, the lack of action by management in relation to his complaints of racial harassment and differential treatment on racial grounds relating to his suspension.

(e)	The Tribunal was satisfied that the proposed amendment did not fall within the first category referred to in Harvey as set out above.  Having considered the Originating Application as a whole but in particular the terms of Paragraph 13 and the specific parts of same highlighted by the applicant it was satisfied that the proposed amendment fell within the said second category referred to in Harvey.  In essence the Tribunal was satisfied that the applicant was putting a new ‘label’ on facts already pleaded.  In light of same, whilst the proposed amendment is not required to be subjected to scrutiny in respect of the time limits, the Tribunal has a discretion whether to allow the proposed amendment.  In doing so the Tribunal is required to take account of all the circumstances and balance the injustice and hardship of allowing the amendment against injustice and hardship of refusing it.  The Tribunal paid particular attention to the guidelines in relation to the exercise of the above discretion set out in the judgement of Mummery J (as he then was) in the case of Selkent Bus Co  v  Moore (1996) IRLR 661.

(f)	The Tribunal considered that the proposed amendment was substantial involving a new head of claim with additional factual matters which would required to be proved thereunder.  Whilst the Tribunal accepted that Mr Fitzmaurice had moved promptly when he had come on record to make this application the Tribunal, however, was given no explanation for why the application had not been made earlier and in particular why these new matters which had to have been known by the applicant and his then legal advisers had not been put forward in the Originating Application.  The Tribunal was satisfied that the applicant would be able to proceed in any event on the original claim of unfair dismissal.  The Tribunal acknowledged that there was some risk of hardship to the respondents, in particular the second and third respondents, in that there would be a longer hearing with a concomitant increase in costs which would not be recoverable but also that the second and third respondents would have no personal liability under an unfair dismissal claim and would not require to be party to such proceedings.  The Tribunal did not consider that the respondents would be seriously prejudiced by the proposed amendment, albeit it acknowledged that any delay is unsatisfactory in particular in a case of harassment where a person’s memory of what occurred or was said can be very important.

(g)	In light of the foregoing the Tribunal decided in the exercise of its discretion that it should not allow the said amendment.  The said application to amend the Originating Application is therefore dismissed and the Originating Application will be re-listed for the hearing of the applicant’s claim of unfair dismissal.

Chairman:

Date and place of hearing:	29 October 2002, Belfast

Date decision recorded in register and issued to parties: