THE INDUSTRIAL TRIBUNALS

CASE REF:	316/12
1212/12

CLAIMANT:		Linda Black

RESPONDENTS:		1.  Colin Black
		2.  Newtownbreda High School
		3.  Board of Governors of 
		     Newtownabreda High School
		4.  South Eastern Education & Library Board

DECISION ON A PRE HEARING REVIEW
The decision of the tribunal is that:-

(i)	the claimant’s claim forms do not already contain complaints of sexual harassment;

(ii)	the claimant’s application for an amendment amounts to a relabeling of both claims;

(iii)	the claimant’s application for an amendment of both claims to include a claim of sexual harassment is granted.

Constitution of Tribunal:
President:		Miss Eileen McBride (sitting alone)

Appearances:
The claimant was represented by Ms L Clarke, Barrister-at-Law, instructed by Gordon Wallace & Co LLP, Solicitors.
The first respondent was represented by Ms L Coey, Barrister-at-Law, instructed by NAHT.

The second, third and fourth respondents were represented by Ms A Finnegan, Barrister-at-Law, instructed by the Education & Library Boards Solicitors.  

Reasons

1.	The claimant presented a claim, case reference number 316/12, to the Industrial Tribunal on 10 February 2012.  The claimant presented a further claim, case reference number 1212/12, on 29 June 2012.  The claimant claimed that both claims already contained complaints of sexual harassment.  Alternatively the claimant made an application to amend both claims to include complaints of sexual harassment.  

	I am not satisfied that either claim form contains specific complaints of sexual harassment.  However, having considered the representations of Ms Clarke, Ms Coey and Ms Finnegan and having considered the claim forms, I am satisfied that the claimant’s amendment application seeks to add a new label on facts which are already pleaded in the claimant’s claim forms.  Neither Ms Coey nor Ms Finnegan disputed that that was the position.

	The representatives all agreed that in deciding whether to grant or refuse the amendment application I should take into account all the circumstances and balance the injustice and hardship to the parties of allowing or refusing the amendment application.  They also all agreed that as this was effectively a relabeling amendment it should not be subjected to scrutiny in respect of time limits - See Harvey Volume 3 Section P1 paragraph 312.02.  

2.	Ms Coey and Ms Finnegan did not dispute that:-

(i)	the allegations which form the basis of the amendment application were set out in the claimant’s claim forms which were presented on 13 February 2012 and 29 June 2012;

(ii)	the issue of sexual harassment was first raised at a Case Management Discussion in May 2012;

(iii)	the amendment is unlikely to add to the cost or length of the Hearing;

(iv)	the respondents have received the claimant’s witness statement and are therefore aware of her direct evidence in relation to the sexual harassment claims;

(v)	the claimants have until 31 May 2013 to provide their witness statements and therefore have ample time to respond to the proposed amendment; and

(vi)	the case is not due to be heard until 17 to 21 June 2013.  

3.	Ms Coey and Ms Finnegan submitted that their real objection to the amendment application was that the claimant’s complaint of sexual harassment was “manifestly hopeless” and should therefore be refused - See Harvey Volume 3 Section P1 paragraph 311.01.  In support of that contention they relied on the decision of the Employment Appeal Tribunal in the case of B v A (2007) IRLR 576.  

4.	Ms Clarke submitted that:-

(i)	the B v A case was decided before the definition of sexual harassment was changed, as set out at Article 6A of the Sex Discrimination (Northern Ireland) Order 1976; and

(ii)	following that amendment the claimant is no longer required to establish that the conduct complained of was “on the ground of” her sex.  Instead she must now establish that the conduct “was related to” her sex.  

5.	In light of the matters set out at paragraph 2, which were not in dispute and as the definition of sexual harassment was amended after the decision in B v A, I am not in a position to determine whether the claimant’s claim of sexual harassment is “manifestly hopeless”.  I consider that is a decision which should be more appropriately made by a full tribunal.  In those circumstances I am satisfied that the claimant would suffer greater injustice and hardship if her application to amend was refused, as her claim of sexual harassment could not be heard, than the respondents would if the application was granted.  I therefore grant the claimant’s amendment application.  

6.	I made it clear to the respondents’ representatives that if they intend to make an application for costs against the claimant in respect of this claim on the ground that it had no reasonable prospect of success, they should provide their reasons in writing to the claimant’s representative as soon as possible together with an indication of the costs likely to be sought on defending that part of the claim.  

______________________________________
E McBride CBE
President

Date and place of hearing:  30 April 2013, Belfast	

Date decision recorded in register and issued to parties: