THE INDUSTRIAL TRIBUNALS

CASE REF:	  2005/13

CLAIMANT:			Kamila Vagajova	

RESPONDENTS:		1. Thornyhill Restaurant Two Ltd
				2. Happy Angels Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that leave should not be granted to the claimant to amend her claims to include a claim of unlawful discrimination on racial grounds.

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge Crothers 

Appearances:

The claimant was represented by Mr R Fee, instructed by the Equality Commission NI.    An interpreter, Lukas Kiraly, was also present.

The respondents were represented by Mr M Mason of Collective Business Services.

THE ISSUES

1.	The issue before the tribunal was whether the claimant should be granted leave to amend her claim so as to include a racial discrimination claim (in respect of matters mentioned at paragraph A.1 of the record of proceedings of 30 May 2014 CMD).

SOURCES OF EVIDENCE

2.	The claimant did not give oral evidence and the tribunal relied on relevant documentation before it together with submissions from both representatives.

BACKGROUND AND FINDINGS OF FACT

3.	(i)	It was not disputed that a trade union representative drafted the claimant’s claim to the tribunal which was presented on 21 November 2013.  The claim contains a number of claims and does not contain any reference to discrimination on racial grounds.  At paragraph 7 of the claim form the box relating to racial discrimination is not ticked.  A response was presented to the tribunal on 10 January 2004 on behalf of both respondents.  The claimant did not appear at the Case Management Discussion held on 26 March 2013 but represented herself at a Case Management Discussion on 7 May 2014 and again, at a further Case Management Discussion held on 30 May 2014.

	(ii)	The record of proceedings pertaining to the Case Management Discussion held on 30 May 2014 contained the following paragraphs under “Issues A”:-

“2.	“Did Thornyhill Restaurant Two Ltd (“TT”) discriminate against the claimant (because of her pregnancy), contrary to Article 8(1) of the Sex Discrimination Order (“SDO”), either in the arrangements being made for the purpose of determining who should be offered redeployment from HA, or by refusing or deliberately omitting to offer her redeployment?

3.	The same issue is repeated, but this time the issue is whether or not the alleged discrimination was carried out on racial grounds, contrary to sub-paragraph (a) or (c) of paragraph (1) of Article 6 of the Race Relations Order”.

(iii)	It was not disputed that paragraph 3 was inserted pending Mr Mason obtaining instructions from the respondents as to whether they objected to such an amendment being made.  The basis for the respondents’ objection to the amendment is articulated in Mr Mason’s correspondence to the tribunal dated 10 July 2014 which contains the following:-

		“On behalf of the Respondent it is submitted that there is nothing in the ET1 that even hints at facts from which the Claimant could allege that the decision by Thornyhill Restaurant Two Limited not to employ her could amount to an act of race discrimination.  Indeed, in the ET1 she points to people of the same race as her as examples of individuals who were treated more favourably than her.  Throughout the Claimant’s complaint to the Respondent prior to issuing proceedings and in the ET1 the Claimant makes assertions of sex discrimination.  There are no facts pleaded that, even if accepted by the Tribunal, could lead to a finding of race discrimination.

	The Claimant is attempting to bring a new claim that is not connected to the facts as pleaded.  The amendment ought therefore to be subject to scrutiny in relation to time limits.  As the time limit for bringing a claim for race discrimination had expired by the time of the Claimant’s application to amend the ET1, the Respondent objects to this new claim being added at this stage of the proceedings”.

(iv)	The case was timetabled for hearing on 22 and 23 September 2014 at the Case Management Discussion held on 30 May 2014.  Witness statements were not directed.

(v)	The possible amendment was raised at the Case Management Discussion held on 30 May 2014 when the claimant was representing herself.  (The claimant also represented herself at a separate hearing before an Employment Judge on 30 May 2014).  There was no reason afforded by the claimant’s representative as to why she did not raise racial discrimination until this stage, apart from a reference in the submissions to her pregnancy and the fact she had given birth in February 2014 and had not turned her mind to such matters.  However, the tribunal did not have the advantage of hearing oral evidence on this point.  The claimant’s correspondence to the tribunal dated 27 May 2014 reads as follows:

	“As directed by the Chairman during the Case Management Discussion held on 7th May 2014, I wish to amend my IT1 application form to include discrimination on the grounds of disability and nationality in addition to sex discrimination”.

(vi)	The claimant ended the extensive narrative in her claim form as follows:-

		“I believe I was unfairly dismissed and discriminated on the grounds of sex”.

At paragraph 7.2 of the form, the claimant indicated that the matter about which she was complaining happened on 14 October 2013 and did not tick the box to indicate whether it was ongoing.

(vii)	At the Case Management Discussion dated 30 May 2014 both parties were ordered to provide Discovery by 1 September 2014.  Furthermore it is recorded in the record of proceedings dated 25 June 2014 as follows:-

“B.	Discovery/Additional Information

1.	The claimant had written on 27 May to state that “as directed by the Employment Judge ...” she wished to amend her claim form to include discrimination on the ground of disability and nationality (in addition to sex discrimination).  

2.	During the course of this Case Management Discussion (“CMD”), the claimant acknowledged that I had never “directed” her in any relevant respect”.

THE LAW

4.	The tribunal carefully considered the extracts from Harvey on Industrial Relations and Employment Law (“Harvey”) Division T, at paragraph 311ff, and the case law referred therein including the leading case of Selkent.

SUBMISSIONS

5.	(i)	The claimant’s counsel acknowledged that the major thrust of the amendment application was in regard to the first respondent but also related to the second respondent in terms of alleged reduction of hours and general treatment relating to the closing down of the business.  He urged the tribunal to accept that the proposed amendment was a relabelling of facts already pleaded in respect of pregnancy discrimination.  He also acknowledged that in a pregnancy discrimination case the comparator is not required.  Mr Fee submitted that, if the amendment were to be granted, the claimant would rely on a hypothetical comparator, ie, that a pregnant Irish/British employee would have been treated more favourably than the claimant.  He referred to the case of Selkent Bus Company Limited v Moore [1996] IRLR 661, (1996) and the principles therein.  He submitted that any hardship and prejudice for the respondents would be relatively limited and submitted that there was nothing to prevent a tribunal hearing such a case of discrimination on racial grounds on the same facts pleaded in relation to pregnancy discrimination. 

(ii)	Mr Mason, in terms, reiterated the main thrust of his correspondence to the tribunal of 10 July 2014.  He submitted that there was no explanation as to why the claimant had not raised discrimination on racial grounds at the time of presentation of her claim to the tribunal.  He referred to Harvey at T311ff to argue that there was no causal link between the case as set out in the claim form and the proposed amendment.  He also contended that there would be an extension of evidence required should the amendment application be granted.  He submitted that the respondents would be subjected to prejudice and hardship and that, at any rate, the proposed amendment was out-of-time.

(iii)	The tribunal also considered Mr Fee’s further submissions in response to Mr Mason together with Mr Mason’s brief supplemental submission relating to whether a comparator would be required should the tribunal make a finding in favour of a pregnant foreign national.  He had submitted earlier that the claimant’s case seemed to be primarily one of sex discrimination and that the tribunal should only consider that claim.  

CONCLUSION

6.	Having considered the relevant documentation together with the submissions, the relevant principles of law, and findings of fact, the tribunal concludes that the amendment sought constitutes a new claim and, in the absence of oral evidence from the claimant, that it would not be just and equitable to extend the time-limit to allow the amendment.  In the alternative, the tribunal is satisfied that the amendment should not be allowed on the balance of justice and hardship ground.

Employment Judge:       

Date and place of hearing:	14 August 2014, Belfast.	

Date decision recorded in register and issued to parties: