THE INDUSTRIAL TRIBUNALS

CASE REF:	6705/09

CLAIMANT:			Stephen Bradford

RESPONDENT:		QEF Global Ltd

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that leave is not given to amend the claim to include a claim of Age Discrimination.

Constitution of Tribunal:
Chairman (sitting alone):		Mr N Kelly

Appearances:
The claimant was represented by Mr Corkey, BL, instructed by Alan M Brown Solicitors. 

The respondent was represented by Ms S Walkingshaw, BL, instructed by O’Reilly Stewart Solicitors.

(1)	This was a Pre-Hearing Review, before a Chairman sitting alone under Rule 18(2) (a) of Schedule 1 to the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (NI) 2005.

Issues to be determined

(2)		The issues set down for determination in this Pre-Hearing Review were:

“Does the claimant’s claim to the tribunal contain a claim of unlawful discrimination on the ground of age?  

If not, is it appropriate to amend it to include such a claim?

Has any such claim been presented within the prescribed time-limit?

If not, is it just and equitable, in all the circumstances of the case, to extend the time for presenting such a complaint?”

Relevant facts

(3)	The respondent is a supplier of nuts and bolts etc to various industrial customers such as Wrightbus Ltd.  

(4)	The claimant was employed by the respondent from 3 May 2005 to 31 July 2009 in their Stores Department.

(5)	On the day of his dismissal, the claimant completed a detailed ET1 claim form which was received in the tribunal on 3 August 2009.

(6)	At paragraph 7(1) of that claim form the claimant was asked to “tick the box (es) to indicate the type of complaint he wished the tribunal to consider.”  There were 14 boxes each identifying a different type of complaint, ranging from “Discrimination-Age” to “Working Time Regulations” and one additional box titled “Other type of complaints – Please specify”.  The claimant only ticked the box titled “Unfair Dismissal”.

(7)	There was no entry in paragraph 7.2 of the claim form which asked for dates of any alleged discrimination.

(8)	In the claim form, the claimant included four full manuscript pages detailing his claim.  These pages referred in detail to a claim of unfair dismissal.  He set out his discussions with his Line Manager, Mark Scott, about the employment of a Michael McKinley, initially to help in the Stores Department, and subsequently in the Sales Department.  There was no mention of age discrimination or of any form of unlawful discrimination at any point in the claim form.  

(9)	The claimant had no legal or other advice in completing the claim form and the complaint is described in plain rather than technical language.  However it is clear that the complaint was that he had been unfairly selected for redundancy, that he had not in fact been redundant, and that Michael McKinley was now performing his role.  The claimant also made several allegations about both Mr Scott and the respondent company.

(10)	On 7 October 2009, the respondent issued a Notice for Additional Information which included the following;

“State precisely each and every aspect in which the claimant alleges that he has been unfairly dismissed”.

(11)	The relevant response was:

“My claim for unfair dismissal is based on the grounds my position, role and duties involved still exist and the said position, role and duties are being performed by another individual.  Someone who was employed days after the Company issued letters etc relating to cut-backs involving the suspension of the company pension scheme and the withdrawal of the company health care plan on 1 April 2009 citing loss of revenue and business for this course of action.  The individual concerned had no previous knowledge, history, experience or employment in this industry.”

(12)	There was no mention of age discrimination, or of the age of either the claimant or of Mr McKinley in the replies to that Notice.

(13)	There was no mention of Age Discrimination during the internal appeal process which followed the claimant’s dismissal.  

(14)	The claimant instructed solicitors for the first time on 17 November 2009.  Those solicitors asked the tribunal office for a copy of the claimant’s ET1 claim form.  There was an unfortunate delay in supplying a copy of that claim form.  However on receipt of that form on 10 December 2009, the solicitors sought leave to amend the claim to include a claim of age discrimination.  That was the first time age discrimination was mentioned in any correspondence from or on behalf of the claimant.

Contentions of the claimant

(15)	In evidence, the claimant stated that he regarded “unfair dismissal” as a blanket term covering everything relating to his dismissal, including age discrimination.  He had had no legal advice in the preparation of his claim before 17 November 2009 and was under stress as a result of a family illness.  Age discrimination had always been part of his claim.  He hadn’t been sure what he should put down on the claim form and concentrated on his relationship with his manager.  He thought that the claim was “self explanatory” and that it included an allegation of age discrimination.  His response when the reply to the Notice for Additional Information was put to him was that it was “just a mistake”.

(16)	On re-examination, it was suggested to the claimant that he had thought that Mr McKinley had been “lined up to take his job”.  He was asked why he thought that Mr McKinnley, in particular, had been put in that position.  His response was that “their reason would have been financial primarily”. He did not refer to age or to age discrimination in his response to that suggestion.

(17)	Mr Corkey argued that the facts pleaded on a claim form supported a claim of age discrimination.  This was not an entirely new claim.  It was simply a relabeling exercise.  Time limitation was not an issue.  If it was an issue, the case was not currently listed for hearing.  No additional witnesses would be required on behalf of the respondent.  The prejudice to the claimant if the amendment were not allowed i.e. the inability to claim for injury to feelings, far outweighed any minor prejudice to the respondent.

Contentions of the respondent

(18)	Ms Walkingshaw stated that the claimant had failed to raise an issue of age discrimination in the ET1 claim form, in the internal appeal process or in the replies to the Notice for Additional Information.  The ET1 claim form was designed to be easy to complete and does not require legal representation.  The first box available for “ticking” in paragraph 7(1) says “Discrimination-Age“.  If the claimant had had age discrimination in mind he would surely have ticked that box.  This was an entirely new cause of action.  It required an extension of time since a three month period had elapsed before the claimant’s solicitors raised the issue on 11 December 2009.  There would be significant prejudice to the respondent.  This was a case which had been listed for a substantive hearing on 6 January 2010 but that substantive hearing had been converted into a Pre-Hearing Review to deal with the application for an amendment.  Additional witnesses and evidence might be required to rebut the allegation of age discrimination.  The case would take longer to hear.

Relevant law

(19)	Rule 10(2) (q) of the 2005 Rules give the Chairman power to permit the amendment of a claim.

(20)	The “overriding objective” the 2005 Rules is to enable the tribunals to dealt with a case justly and that includes;

“Ensuring that it is dealt with expeditiously and fairly”

(21)	In Anyanwu and Another v South Bank Student Union [2001] UK HL 14, Lord Steyn stated that, as a general principle, cases involving discrimination should be heard as a matter of public interest.

(22)	Mr Justice Mummery stated in Selkent Bus Company Ltd v Moore [1996] ICR 836 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.”  

(23)	He further stated;

“What are the relevant circumstances?  It is impossible and undesirable to attempt to list them exhaustibly but the following are certainly relevant;

(a)	The nature of the amendments; 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, or, on the other hand, the making of entirely new factual allegations which change 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 statutory 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 an 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 can be made at any time before, at, or 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 in 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 from adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”

(24)	Harvey states at paragraph 311.01 of Part T;

“[Before making that decision however,] the tribunal should take into account all the circumstances and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.”

(25)	At paragraph 311.3 it states;

“A distinction may be drawn between;

(1)	Amendments which are merely designed to alter the basis of an existing claim but without purporting to raise a new distinct head of complaint.

(2)	Amendments which add or subject a new cause of action which is linked to or arises out of the same facts as the original claim.

(3)	Amendments which add or subject a wholly new claim or cause of action which is not connected to the original claim at all.”

(26)	In Golding v Southfields Community College EAT 0395/06; the only complaint    made in the claimants claim form was of unfair dismissal.  However she had stated in paragraph 5.1 of the claim form that she had been asked by the Head Teacher of the school where she had worked to “massage the figures” for pupil absences and that she had made her objections known to this and had then been bullied and intimidated.  The claimant subsequently applied for leave to amend her claim of unfair dismissal to include a claim of automatically unfair dismissal for making a protected disclosure.  That amendment was refused by the Employment Tribunal on a basis that it was a substantive amendment to the original claim in respect of which the relevant time-limit would have to be applied.  The EAT reversed that decision on the basis that the claim form had identified the essential basis of the claim that the claimant had suffered dismissal by reason of a protected disclosure.  Applying the principles established in Selkent, the EAT concluded that the application to amend merely involved the addition of factual details and another label to facts already pleaded.  It did not, in the EAT’s opinion, involve an entirely new factual allegation changing the basis of the existing claim.

(27)	In Robertson v Becksley Community Centre [2003] IRLR 434, the Court of        Appeal held;

“It is also important to note that the time-limits are exercised strictly in employment and industrial cases.  When tribunal consider their discretion to consider a claim out of time on just and equitable grounds, there is no presumption that they should do so unless they can justify failure to exercise the discretion.  Quite the reverse. The tribunal can not hear a complaint unless the applicant convinces it that it is just and equitable to extend time.  So, the exercise of discretion is the exception rather than the rule.”

(28)	In Department of Constitutional Affairs v O’Brien UK EAT/0139/07, Mr Justice Langstaff stated;

“1.	Time-limits are draconian.  However, they are not contrary to Article 6 of the Convention of Human Rights, provided there is a means of ameliorating the necessary harshness.  A time-limit of three months is familiar territory to many of the claims which come before the Employment Tribunal jurisdiction.

a.	In this claim, the harshness of a three month cut-off, for what might otherwise be a perfectly good claim, is ameliorated by the provision that a tribunal may hold that it is just and equitable for the claimant to proceed, not withstanding the expiry of the relevant time-limit.  However, it is plain from the very nature of time-limits that they are intended to be of general application, subject only to legitimate exceptions; and it must follow that good reason must be shown for such exceptions.”

(29)	In British Coal v Keeble [1997] IRLR 336 the EAT suggested that a tribunal would be assisted by the factors mentioned in Section 33 of the Limitation Act 1980, which deals with the exercise of discretion by the courts in personal injury cases.  This requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also take regard to all the circumstances of the case and in particular to:

(a)	the length of and reasons for the delay;

(b)	the extent to which the cogency of the evidence is likely to be    affected by the delay;

(c)	the extent to which the party sued had cooperated with any request for information;

(d)	the promptness with which the plaintiff acted once her or she knew of the facts giving rise to the cause of action; and

(e)	the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.

Decision

(30)	I do not accept Mr Corkey’s evidence that the proposed amendment amounts to a simple “relabeling exercise” and that therefore time limitation is not an issue.  The present case can not reasonably be regarded as analogous to Golding where the amendment sought was to add a claim of automatically unfair dismissal to an existing claim of standard unfair dismissal.  The proposed amendment in the present case would introduce an entirely new type of claim; an allegation of unlawful discrimination on grounds of age.  No facts were pleaded which would support such a case.  Age was simply not mentioned in the ET1 claim form or at any stage subsequently until the claimant instructed solicitors on 17 November 2009.  

(31)	The claimant clearly expended considerable effort in completing the ET1 claim form.  In the four manuscript pages in which he set out his complaints, he did not in any way seek to edit or limit the allegations he made against the respondent.  If age discrimination had been in the claimant’s mind at that stage, I am satisfied that he would have included it and, at the very least, he would have referred to his age, the age of Mr McKinley and the age of other staff.  He did not do so.  Furthermore I am satisfied that if he had been considering age discrimination he would have ticked the appropriate box in paragraph 7(1).  He did not do so. 

(32)	I note in particular the question in the Notice for Additional Information and the claimant’s response.  The question was in plain terms and, as the claimant’s response demonstrated, was clearly understood by the claimant.  I do not accept that the claimant simply made “a mistake” in formulating that response.  I therefore conclude that no claim for age discrimination had been contemplated, much less made, before the application for an amendment on 11 December 2009.

(33)	The present case appears to me to be analogous to that of Rawson v Doncaster NHS Primary Care Trust UK EAT/0022/08/Z2 where the claimant sought permission to amend her ET1 claim form in respect of her dismissal to include a claim of disability discrimination.  No claim of disability or any other form of unlawful discrimination had been raised in the claim form.  In that case it was common ground that the proposed amendment was a new cause of action, triggering consideration of the time-limits.

(34)	Having reached that conclusion, the next matter to consider is whether or not it would be just and equitable to extend the time-limit to allow the late lodgement of a claim of age discrimination.  If I were to conclude that it would be just and equitable to do so, the final stage in the decision making process would be determining whether or not, for the purposes of Selkent, an amendment should be made i.e. balancing the prejudice that would be caused by allowing the amendment against the prejudice that would be caused by not allowing the amendment.  Of course, if I were to determine that it were just and equitable to extend the time for lodging the claim, it is highly unlikely that a Selkent balancing exercise would result in a decision against the claimant.

(35)	It is clear from the decisions in Robertson  and in O’Brien that extensions of time should be the exception rather than the rule and that it is up to the claimant to establish that it would be just and equitable to extend time in all the circumstances of the case.

I have to look at all the relevant circumstances including the factors set out in Keeble.  In relation to the first factor, the claim of age discrimination was made some six weeks out of time and no satisfactory reason has been advanced by the claimant for that delay.  The claimant has not sought to argue that he was unaware that age discrimination was unlawful.  He has instead argued that he thought that a claim of unfair dismissal included a claim of age discrimination.  Given that his age and the age of the suggested comparator, Mr McKinley, is mentioned nowhere in the claim form and given his clear response to the Notice for Additional Information, I do not accept that argument.  I have concluded that, for whatever reason, he did not believe that age discrimination was a potential issue in this case until after he had consulted solicitors on 17 November 2009.  In relation to the other factors set out in Keeble, delay is unlikely to affect the cogency of the evidence, the claimant eventually co-operated with requests for information and the claimant acted promptly in lodging his initial claim.  However, he failed to seek appropriate advice either before or after lodging that claim and I have not heard any evidence that would satisfactorily explain that delay in seeking advice.  

(37)	I therefore conclude that it would not be just and equitable to extend time to allow a claim of age discrimination in this case, in the absence of any satisfactory explanation being advanced by the claimant for the delay in lodging that claim and the delay in seeking appropriate advice.  

(38)	The application to amend is therefore dismissed.

Chairman:

Date and place of hearing:	6 January 2010, Belfast.

Date decision recorded in register and issued to parties: