THE INDUSTRIAL TRIBUNALS

CASE REF:	 46/08

CLAIMANT:			Mr Christopher Boyle	

RESPONDENT:		Northern Ireland Housing Executive

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant’s claim form should not be amended to include a claim that the respondent failed in its duty to make reasonable adjustments in 2003 relating to the claimant’s request for a transfer.

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

Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr Mulqueen,  BL, instructed by the Northern Ireland Housing Executive Legal Department.

The issues
1.	This hearing was arranged to consider the following issues:

(1)	Whether the claimant should be allowed to amend his claim to include a claim that the respondent failed to make reasonable adjustments in 2003 relating to the claimant’s request for a transfer.

(2)	Whether the claimant’s claim discloses a claim for a continuing act of discrimination on the grounds of the claimant’s disability from 2003 until his dismissal in September 2007.

(3)	If not, whether the tribunal should exercise its discretion to allow that claim.

2.	At the hearing, the tribunal considered whether it was appropriate to determine issues (2) and (3) by way of pre-hearing review.  Mr Mulqueen contended, on behalf of the respondent, that the issue which should be before the tribunal is whether or not the claimant’s claim discloses any claim for discrimination on the grounds of disability.  Mr Boyle, after being given some time to consider the issues and to prepare, agreed that issues (2) and (3) above would not be considered but instead the issue of whether or not his claim disclosed any claim for disability discrimination and if not whether the tribunal should exercise its discretion to allow such a claim, should instead be determined.  He said he was content to proceed on that basis.

3.	In the event, Mr Boyle accepted, in relation to the new issues that his claim did not include any claim for disability discrimination and he did not wish to pursue an application to ask the tribunal to exercise its discretion to allow such a claim by way of amendment.  Mr Boyle was allowed some time to consider his position and confirmed that he was not proceeding with those claims but wished to continue to seek to amend his claim to include a claim that the respondent failed to make reasonable adjustments in 2003 relating to the claimant’s request for a transfer.

Findings of fact

4.	The findings of facts are as follows:

(1)	The claimant presented his claim to the Office of the Industrial Tribunals on 17 December 2007.  

(2)	The respondents presented their response on 12 February 2008.

(3)	Mr Boyle has accepted and has confirmed at today’s hearing that his claim as presented to the Office of the Industrial Tribunal does not disclose a claim relating to the respondent’s failure to make reasonable adjustments in 2003.

(4)	Mr Boyle had taken County Court proceedings against the respondent in 2001 which were resolved by 2003.  Mr Boyle returned to work at approximately Easter 2003.  He returned to work in the same office that he had been in previously and requested a transfer from that office on the grounds of his alleged previous work problems.  The claimant discussed the possibility of transfer with his office manager and with a Personnel manager but raised no grievance and no complaint at that time.  He did not seek the assistance of either the union who had assisted him in his County Court litigation nor their legal advisors.  As time passed he continued to hope that he would get his transfer.

(5)	On his return to work the claimant still felt in a confused and depressive state which did not clear until the middle of 2004.  However at work from his return at Easter in 2003 until approximately May 2005, he felt that things had gradually settled down and became more confident in his environment.  He considered that the hostility that he perceived had gone.  He still thought that he would get a transfer and that it was easier to wait for that transfer.  Matters then deteriorated from May 2005 and further events unfolded which eventually from the claimant’s perspective, culminated in his dismissal and the subsequent lodging of proceedings in the Industrial Tribunal.

(6)	For the period from his return to work in 2003 to the date of the presentation of his claim to the tribunal, the claimant neither sought nor received any legal advice in relation to his statutory rights.  He submitted his claim to the Industrial Tribunals without the assistance of any advice.

(7)	In preparing to lodge his claim in December 2007 the claimant was aware that there was a three month time limit for bringing most claims to the Industrial Tribunal.  He did not, when lodging his claim form in December 2007, complete section 8 on the form relating to discrimination and did not identify disability discrimination at that time as a claim.  He did not crystallise his decision to seek to add a claim for failure of the duty to make reasonable adjustments until the autumn of 2008.

(8)	The claimant stated that the delay in his application relating to events in 2003 stemmed from his lack of legal knowledge and experience and his periods of ill health.  

The law

5.	In the case of Selkent Bus Company Ltd v Moore [1996] IRLR 661, Mr Justice Mummery stated that the discretion to grant leave to amend a claim should be exercised:

		“In a manner which satisfied the requirements of relevance, of reason, justice and fairness inherent in all judicial discretions”.

6.	Mummery J went on in that case to set out 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 changed the basis of the existing claim.  The tribunal has 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 ….”

Tribunal’s conclusions

7.	It is common case between the parties that the claimant’s claim form taken by itself provides no reference expressly to discrimination and in particular the claimant has accepted that the claim form does not include a claim for the respondent’s failure to make reasonable adjustments in 2003.  There is no factual information in the claim form which allows a re-labelling exercise.

8.	I must therefore consider my discretion to allow an amendment to introduce a new claim out of time.  I may consider a claim which is out of time if in all the circumstances of the case I consider that it is just and equitable to do so. It is clear that the fact that a claim is out of time is simply a factor, albeit an important one, in the exercise of my discretion as to whether or not to allow an amendment.  (Ali v Office of National Statistics [2005] IRLR 2001).  The tribunal must also consider the relative injustice and hardship involved in refusing or granting the amendment.  

9.	I have considered carefully the evidence and the submissions of the parties and the factors that I should bear in mind in exercising my discretion.  

10.	I have reached the conclusion that the claimant should not be permitted to amend his claim to include a claim that the respondents failed to make reasonable adjustments on his return to work in 2003 in failing to provide him with a transfer.  I reached that conclusion for the following reasons:

(1)	The claimant was aware from 2003 of the matters for which he now seeks to make a claim.  Even when accepting the claimant’s case at its height and that his ill health prevented him from properly considering his rights in 2003, the claimant’s situation had improved by mid-2004.  He had drawn his request to the attention of his manager and of the respondent’s personnel department but made no complaint and sought no assistance from anyone regarding his rights or any possible claim to the Industrial Tribunal.

(2)	Although the claimant had recently been involved in County Court litigation and had sought and obtained the support of his union and legal advisors, he did not seek any help or assistance in a period of over 5 years until the matter was raised in November 2008.

(3)	The claimant was able without further legal assistance to present his claim to the Industrial Tribunal making claims of unfair dismissal and of public interest disclosure.

(4)	I have had no satisfactory explanation why the claimant took no active steps from early 2003 until late 2008 to either seek advice or to commence proceedings on his own initiative with the Office of Tribunals.  

(5)	I consider that the length of delay is prejudicial to the respondent’s ability to properly defend a claim for discrimination.  The addition of a claim for disability discrimination in 2003 would greatly widen the range of issues before the tribunal and add considerably to costs.  It is likely to lead to further delay in the proper preparation of the case and further delay for any potential hearing in this matter.  I also consider that it adds to the practical difficulties of obtaining salient evidence of events so long ago and not previously brought to the attention of the respondents.

(6)	Whilst the refusal of leave to amend would limit potential for compensation the claimant still has a case properly made in his claim form for both unfair dismissal and for public interest disclosure.  The claimant is entitled to pursue these claims and to present appropriate and relevant evidence in support of these claims.

(7)	The remaining claims should now be timetabled for hearing.

Chairman:

Date and place of hearing:	28 January 2009, Belfast

Date decision recorded in register and issued to parties: