THE INDUSTRIAL TRIBUNALS

CASE REF:	 1763/07

CLAIMANT:			Magdelina Pamfil		

RESPONDENTS:		1.	Sean Murphy 
				2.	Bridge Mushrooms Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the tribunal has jurisdiction to hear the claimant’s claim for unfair dismissal.  The claimant’s application to amend her claim to include a claim under the Equal Pay Act (Northern Ireland) 1970 is refused.

Constitution of tribunal:
Chairman (sitting alone):		Mr P Kinney

Appearances:
The claimant appeared in person and represented herself with the assistance of an interpreter provided by the tribunal.
The respondent was represented by Miss Best, Barrister-at-Law, instructed by Rosemary Connolly, Solicitors.

1.	This pre-hearing review was arranged to consider the following issues:-

(a)	Whether the claimant is disqualified from the right not to be unfairly dismissed by the provisions of Article 140 of the Employment Rights (Northern Ireland) Order 1996 regarding a minimum period of continuous employment.

(b)	Whether the tribunal should grant leave to the claimant to amend the claim to include a claim, pursuant to the terms of the Equal Pay Act (Northern Ireland) 1970, on the grounds that she was employed by the respondents on like work to that of a man and/or work of equal value to that of a man.

(c)	Whether, insofar as relevant and applicable, in relation to any such claim of equal pay, the subject matter of the said application for amendment, the claimant has complied with the statutory grievance procedure, pursuant to Article 19 and paragraph 6 or 9 of Schedule 1 of the Employment (Northern Ireland) Order 2003 and the tribunal therefore has jurisdiction to hear any such claim of equal pay, if the application for the said amendment is granted.

2.	At the hearing the respondents conceded in light of the claimant’s evidence that she was entitled to bring a claim for unfair dismissal on the basis that the claimant is alleging that her dismissal was because she had asserted a statutory right.  The claimant’s claim for unfair dismissal shall therefore continue to full hearing.

3.	In relation to the second and third issues the claimant accepted that her claim form does not include a claim for equal pay.  Her application for amendment therefore is to ask the tribunal to amend the claim to include a new claim for equal pay.

4.	The tribunal was informed that the claim form was prepared by Mr O’Neill of Citizens Advice Bureau.  The claimant with the assistance of an interpreter gave instructions to Mr O’Neill who subsequently completed the claim form and forwarded it to the tribunal.  It was received by the Office of the Tribunals on 12 January 2007.

5.	The claimant then returned to Poland and because she had no further contact with Mr O’Neill she wrote a letter to the first named respondent on 6 February 2007 and subsequently forwarded this to the Industrial Tribunal on 19 April 2007.  This letter, which the claimant referred to as a second claim form, in fact is the written grievance on which the claimant relies in relation to a claim for equal pay also.  

6.	The relevant part of the letter insofar as the claimant maintained it referred to her claim for equal pay is as follows:-

“Furthermore, I demand the settlement for all my moral loss and discrimination due to my weak knowledge of English, sex and/or origin”.

7.	The claimant had composed this letter in Polish and had given it to a translator to translate and forward to the first-named respondent.  The claimant however took no issue with the English translation of her letter and the tribunal has accepted that the English version is an accurate translation.

8.	The claimant was unable to explain why a claim under the Equal Pay Act (Northern Ireland) 1970 had not been made on the original claim form other than to say that it was completed by her advisor on her behalf and that there were language difficulties for her in making her case. 

9.	The tribunal specifically asked the claimant if she could point to any injustice or hardship she considered that she would suffer if the amendment was not allowed.  She was not able to point to any injustice or hardship.

10.	The claimant’s claim was presented to the tribunal on 12 January 2007.  It was rejected by the tribunal and the claimant sought a review of that rejection.  The review hearing was held on 2 October 2007 when the President allowed the review and accepted the claimant’s claim.  

11.	In her decision the President referred to a potential complaint of sex discrimination and stated:-

“I made it clear to the claimant, through the interpreter, that her claim form did not contain a complaint of sex discrimination and that if she wished to pursue such a complaint she would have to make an application to amend the claim form and that a further hearing would have to be arranged to consider any such application”.

12.	The claimant accepts that the reference to sex discrimination has now crystallised as a claim under the equal pay legislation.

13.	The claimant took no further steps until the matter was raised again by the Chairman at a Case Management Discussion on 5 February 2008 when again the claimant raised issues relating to a claim of sex discrimination or equal pay and the Chairman pointed out that no such claims had been made in her claim.  The claimant was directed that if she wished to make any such claim she must send an application in writing to the tribunal as quickly as possible.  That application was made by letter dated 6 February 2008.

Conclusions of the tribunal

14.	The tribunal has a broad discretion in exercising its power to amend a claim under Rule 10(2)(a) of the Industrial Tribunals Rules of Procedure 2005.  The tribunal should seek to do justice between the parties having regard to the circumstances of the case.  In the case of Selkent Bus Company  v  Moore [1996] IRLR 661, Mr Justice Mummery set out some general guidance in relation to amendments:-

“(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 addition 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, eg, in the case of unfair dismissal, Section 67 of the 1978 Act.  

(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.”

15.	In this case, Miss Best in her submissions has urged the tribunal that it has no discretion as the time-limit for making a claim under the Equal Pay Act (Northern Ireland) 1970 is six months from the qualifying date and there is no power for the tribunal to extend that time.  

16.	The tribunal however disagrees.  In the EAT case of Transport and General Workers Union  v  Safeway Stores Ltd [UKEAT/0092/07/LA], Underhill J considered a similar issue.  At Paragraph 6 of his decision he said:-

“Apart from authority, it might have been thought that there was a strong case for disallowing as a matter of law any amendment which would allow a claimant to bring a fresh claim outside the time-limit within which he could have brought it in freestanding proceedings.  Although Rule 10(2)(q) of the Employment Tribunal Rules gives tribunals a general discretion to allow the amendment of a claim form, it might be thought to be wrong in principle for that discretion to be used so as to allow a claimant to – in effect – get round the statutory limitation period.”

	Then at Paragraph 7 he said:-

“But however attractive that line of argument may be to a purist, the cases appear to be against it.  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.”

	I consider that the tribunal has such a discretion, although clearly the fact that it would be impossible to bring a fresh freestanding claim is a matter to be weighed in the exercise of that discretion.

17.	In the particular circumstances of this case I have reached the conclusion that the claimant should not be permitted to amend the claim.  

18.	There is no dispute that the amendment will plead new facts which have not previously been pleaded in support of a new case.  

19.	No explanation has been provided to this tribunal why these facts, which must have been within the claimant’s knowledge, were not alleged in the original claim.

20.	The claimant could not identify any injustice or hardship in not being allowed to amend the claim.  Clearly there is a hardship in that the claimant would be prevented from pursuing a claim under the equal pay legislation.  However the claimant has a validly made claim presented in time in relation to other matters.  Against this must also be balanced the hardship to the respondents to face an entirely new claim at this stage which has not been pleaded and which is not only outside the applicable statutory time-limits for making a claim but there is no discretion to the tribunal to extend that time in the normal course of events.

21.	Even if the tribunal were wrong to refuse to amend the claim it is also clear that the claimant’s letter of grievance of 1 February 2007 is insufficient in its terms to identify clearly a claim for equal pay as required by the legislation.  I referred at hearing to the comments of Mr Justice Elias in Canary Wharf Management Limited  v  Edebi [2006] IRLR 416 where he said:-

“It seems to me that the objectives of the statute can be fairly met if the employer, on a fair reading of the statement and having regard to the particular context on which it is made, can be expected to appreciate that relevant complaint is being raised … if the statement cannot in context be read even in a non-technical and unsophisticated way as raising the grievance which is the subject the matter of the tribunal complaint, then the tribunal cannot hear the claim.  There is no overriding interest of justice which can be invoked to save it.”

22.	The claimant’s application to amend her claim to include a claim under the Equal Pay Act (Northern Ireland) 1970 is refused.

Chairman:

Date and place of hearing:	3 – 4 November 2008, Belfast

Date decision recorded in register and issued to parties: