THE INDUSTRIAL TRIBUNALS

CASE REF:	290/16

CLAIMANT:			Jurgita Janusonyte

RESPONDENT:		Zenith Hygiene Group plc

DECISION ON A PRE-HEARING REVIEW
(A)	The claimant’s claim form does not currently include a claim, under the Disability Discrimination Act (“DDA”) of a discriminatory dismissal, that discrimination taking the sole form of a failure to make a reasonable adjustment.  
(B)	The claimant is granted leave to amend her claim form so as to include a claim under the DDA of discriminatory dismissal, that discrimination taking the sole form of a failure to make a reasonable adjustment.  
(C)	At all material times, the claimant was a disabled person within the meaning of the DDA.  

Constitution of Tribunal:
Employment Judge (sitting alone):	Employment Judge Buggy

Appearances:
The claimant was represented by Mr T McCourt, Solicitor.
The respondent was represented by Ms S Kyle, Barrister-at-Law.

REASONS

1.	The claimant was employed by the respondent company (“the Employer”) from September 2006 until 2 November 2015.  With effect from the latter date, she was dismissed.  In these proceedings, as currently formulated, the claimant makes an unfair dismissal claim.  

2.	The main basis for that unfair dismissal claim is set out in an annex to paragraph 7.4 of the claim form in these proceedings.  The following extract from that annex highlights the main basis for the unfair dismissal claim:

	“In or about 2011 I developed problems with my right wrist.  I am naturally right handed.  I went to see my General Practitioner and he prescribed painkillers.  I was attending my General Practitioner on a regular basis.  As a result of the difficulty with my wrist in or about 2012 my employer allowed me to work light duties.  ...  In any event I worked without complaint on light duties for some considerable time until [7 November] 2014.  My employers then sent me a letter stating that they had accommodated me for some time but they now expected me to complete all functions within my job role.  ...  On [10 February 2015] I was summoned to the office and informed by Mr Gary Quinn, the Production Manager that I should either go back on the line or go to my doctor and get a sick line.  He asked if I was ready to go back on the line and I told him that I was not.  In any event I was put onto statutory sick pay and I remained on statutory sick pay until I received a letter dated [2 November] 2015 saying that I had been dismissed.  ...

	In the correspondence exchanged with my former employers, my solicitor made the point to them that I had carried out the duties given to me without any complaint.  Those duties were still available within the workplace and I feel it was not unreasonable for my employers to allow me to continue working as a production operative on light duties only.  I had worked in this capacity for a number of years without complaint as previously stated”.

3.	The claimant’s employment with the Employer came to an end on 2 November 2015.  Her claim form was presented on 13 January 2016.  During the course of a Case Management Discussion (“CMD”) on 26 February 2016, there was some discussion on the following questions:  (1)  Should the claimant’s claim form be construed as already including a claim under the DDA of discriminatory dismissal, such discrimination taking the sole form of a failure to make a reasonable adjustment?  (2)  If not, should the claimant be granted leave to amend her claim form so as to include such a claim?  

4.	As was pointed out during the course of the record of proceedings in respect of the February CMD, if the claimant’s claim form currently includes such a discriminatory dismissal claim, or if the claimant is granted leave to amend her claim form so as to include such a claim, an additional question has to be resolved: That question is whether or not the claimant was a “disabled person”, within the meaning of the DDA, at any one, or more, or all, relevant times.  

5.	The purpose of this pre hearing review (“PHR”) was to consider the questions which have been identified at paragraphs 3 and 4 above.  During the course of this PHR hearing, Ms Kyle made detailed and cogent arguments on behalf of the respondent.  Although I have decided two of the three key issues in this PHR in favour of the claimant, I was impressed by the quality and breadth of the arguments which were put forward in this case on behalf of the Employer.

An existing claim?

6.	I accept Ms Kyle’s argument that the claim form cannot properly be construed as already including a claim of unlawful discriminatory dismissal.  

The amendment application

7.	What I now have to do is to consider whether the new claim would have been in time if it had been brought by way of fresh proceedings (as distinct from being initiated as an amendment to existing proceedings).  If I conclude that the new claim would have been out of time if it had been brought during the course of fresh proceedings, I still have a vestigial discretion to allow the amendment.  If, on the other hand, I conclude that the proposed additional claim would have been in time if it had been brought by way of fresh proceedings, I still have a vestigial discretion to refuse to allow the amendment.  (In this general connection, see Transport and General Workers Union v Safeway Stores Ltd (UKEAT/W092/07, especially at paragraphs 10 and 17-21).  

8.	I note that in National Statistics Office v Ali [2004] EWCA Civ 1363 (21 October 2014), the English Court of Appeal indicated that:  (1) In deciding whether to grant leave to amend a claim form, so as to include a new employment discrimination claim, an important question may be of whether or not the new claim would have been within the secondary time-limit if it had been brought in fresh proceedings; (2) In that context, there is no significant difference between the secondary time-limit test (“the just and equitable test”), which applies in considering whether a fresh claim has been brought within the relevant secondary time-limit, and the “balance of hardship and injustice” test, which is usually the basis upon which amendment-leave applications are decided.  (The “balance of hardship and injustice” test is derived from the principles which were declared in Selkent Bus Company v Moore [1996] ICR 836).  

9.	For a discussion of the points which have been highlighted at paragraph 8 above, see especially paragraphs 40, 41 and 47 of the Ali judgment.  

10.	In deciding whether or not to extend the time-limit, it is appropriate to have regard to all of the factors which are listed at section 33(3) of the Limitation Act 1980 (which applies in Great Britain).  In my view, if that is done, the factors which are of principal importance, in the circumstances of this case, are the following:

(1)	the reason for the delay,

(2)	the duration of the delay and

(3)	whether the respondent has been prejudiced because of the delay (as distinct from being prejudiced by the making of the claim at all).

11.	On behalf of the claimant, Mr McCourt accurately informed me of the reason for the delay.  In the circumstances of this case, I am satisfied that that reason was not a good reason for the delay.  

12.	The duration of the delay was very short.  (The claimant was dismissed at the beginning of November 2015.  On 26 February 2016, during the February CMD, Mr McCourt applied, on the claimant’s behalf, for leave to amend the claim form, so as to include the proposed new claim.  (If fresh proceedings had been launched in respect of the discriminatory dismissal claim at the end of January, those proceedings would have been brought within the relevant primary time-limit.  The new claim is that, on 2 November 2015, the claimant ought to have been re-allocated to lighter duties, instead of being dismissed. The primary time-limit for making a claim of discriminatory dismissal under the DDA is three months from the date of dismissal.  Those three months expired on or about 2 February 2016.)

13.	On the question of prejudice, the following extract from paragraphs 33-36 and 33-37 of “Clerk and Lindsell on Torts”, nineteenth edition (which relates to the secondary time-limit in respect of personal injury claims) is relevant: 

	“33-36 – In deciding whether it is equitable to disapply the limitation period, the court must have regard to the degree to which the provisions of [the relevant primary limitation period] prejudice the claimant or any person he represents, but also to the degree to which the exercise of the discretion in favour of [the] claimant would prejudice the defendant or any person whom he represents.  The prejudice to the claimant comes from the loss of the opportunity to pursue his claim against the defendant. ...

	33-37 – In Hartley v Birmingham City D.C., the Court of Appeal held that, as the prejudice to the defendant resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the claimant, from the operation of the limitation period, the loss of the defence as such is of small importance.  It was decided that what is of paramount importance is the effect of the delay on the defendant’s ability to defend the claim.  ...  The true prejudice to the defendant has been described not as the prejudice of meeting a liability but of having to defend or otherwise deal with that stale claim.  ...”.

14.	In my view, that extract from Clerk and Lindsell accurately reflects the position in respect of prejudice, in deciding whether or not to extend the time-limit in respect of an employment discrimination claim.  

15.	I am satisfied that the respondent has not been prejudiced by the delay in seeking to make this new claim.  In deciding whether or not the failure to re-allocate, to lighter duties, was a failure to make a reasonable adjustment, a tribunal will have to arrive at conclusions in respect of a number of issues, not all of which are mentioned in the claim form as currently formulated.  However, those of the reasonable adjustment factual issues which are fact-sensitive are issues which a tribunal would have had to resolve in any event, even if the claimant was only allowed to pursue her current unfair dismissal claim.  

16.	In my view, the employer’s ability to adequately investigate, and to present its defence to, the proposed new claim is unlikely to be affected, to any significant extent, by the relatively short delay in bring that claim.  

17.	Against that background, and for those reasons, I am sure that, if the proposed new claim were to be brought in fresh proceedings, those proceedings would have been brought within the relevant secondary time-limit.  

18.	Nevertheless, as already indicated at paragraph 7 above, I still have a residual discretion, notwithstanding my conclusions in relation to the time-limit issue, to refuse the claimant leave to amend her claim form by adding a new claim. 

19.	I am unaware of any good reason for exercising that discretion by refusing the relevant leave to amend.  

20.	Against that background, and for those reasons, I have granted the claimant leave to amend her claim form, so as to include the additional claim specified at paragraph 3 above.  

21.	From now onwards, the claimant’s claim form is to be construed as including the additional claim which was specified at paragraph 3 above.

22.	From now onwards, the employer’s response is to be deemed to include a denial that the respondent failed to make a reasonable adjustment, in not offering the claimant lighter duties at the time of dismissal, and a consequential denial that the dismissal was an unlawful discriminatory dismissal.  

The “disabled person” issue

23.	The claimant is not protected under the DDA, in respect of any relevant period, unless she was a “disabled person” within the meaning of the DDA, at the relevant time.  

24.	Subsection (1) of section 1 of the DDA provides that, subject to the provisions of Schedule 1 of the Act, a person has a disability for the purposes of the Act if she has a physical or mental impairment which has a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.  

25.	The effect of the provisions of subsection (1) of section 1, read with the provisions of Schedule 1, is that, in respect of any relevant period, a person has a disability for the purposes of the Act if, and only if, all of the following criteria are met:

(1)	At the relevant time, she must have had a physical or mental impairment.  

(2)	At the relevant time, that impairment must have had a substantial adverse effect on her ability to carry out certain specified “normal day-to-day activities” (as defined in Schedule 1 of the Act).  

(3)	At the relevant time, that effect must have had been “long term”.

26.	The parties were in agreement in relation to some aspects of that definition:

		(1)	First, it was agreed that the claimant had a physical impairment. 

(2)	Secondly, it was agreed that any relevant adverse effect was an effect upon the claimant’s manual dexterity (which is one of the activities which are specified in Schedule 1 of the Act).  

		(3)	Thirdly, it was agreed that any such effect was long term.

27.	On 8 October 2015, Dr F W O’Reilly, an Occupational Health Physician, assessed the claimant on behalf of the employer.  In that report, under the heading of History and Assessment, he described her condition as follows:

	“She describes a painful right wrist.  She is right handed.  She relates this to a large extent to her work.  She describes that within work she screws on the tops to trigger bottles.  

	Largely her symptoms have not improved in the time that she has been off.  She still finds her wrist being painful after housework and household activities.  She describes the pain in her forearm and into her wrist.  ...  She feels she has some clawing of her hand and fingers and she has discussed this with her GP.  Her GP has treated this wrist and forearm pain largely with painkillers and anti-inflammatories, the most recent one being Naproxen.  

	On assessment today it is likely she has some form of WRULD, with no indication currently when he symptoms will resolve sufficiently and therefore she will be assessed as unfit for the foreseeable future to undertake manual work.  She would be fit for alternative work that would not involve any gripping or twisting using her right hand if this was available”.

28.	During the course of her sworn oral testimony during this PHR, the claimant told me that she suffered wrist pain while hoovering and while peeling vegetables.  I accept that this was truthful testimony.

29.	As already indicated (at paragraph 24 above), schedule 1 of the DDA supplements the provisions of Section 1 of the Act.  Paragraph 4 of that schedule provides that an impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities if it affects manual dexterity.  

30.	On behalf of the employer, it was realistically accepted that, in the context of the workplace, the claimant’s wrist problem did indeed substantially (and, of course, adversely) affect her manual dexterity.  

31.	However, on behalf of the employer, Ms Kyle rejected the proposition that, outside the workplace, the wrist problem affected the claimant’s manual dexterity, to any significant (as distinct from a trivial) extent.  

32.	However, in my view, the implication of Dr O’Reilly’s assessment (and its reference to difficulties involving any gripping or twisting “using her right hand”) is that, in Dr O’Reilly’s opinion, the adverse effect of the claimant’s ailment, in respect of manual dexterity, applies in relation to all aspects of her activities, not just in relation to her workplace activities.

33.	As Ms Kyle noted, according to the claimant’s own sworn testimony, her ailment did not prevent her from carrying out any particular household duties, it merely made it painful for her to carry out such duties.  On that basis, Ms Kyle argued that, outside the workplace, the claimant’s manual dexterity was not adversely affected, by the relevant ailment, to a substantial extent.  

34.	I reject that argument.  In my view, if one cannot carry out a particular activity without pain, then one’s ability to do so is adversely affected to a substantial extent.  

35.	I note that support for that conclusion is contained in the “Guidance on matters to be taken into account in determining questions relating to the definition of disability” which was issued pursuant to section 3 of the DDA.  

36.	Subsection (A1) of section 3 of the DDA provides that the Office of the First Minister and Deputy First Minister may issue guidance about matters to be taken into account in determining whether a person is a disabled person.  I note that subsection (3) of section 3 of the DDA provides that, in determining for the purpose of the DDA whether a person is a disabled person, a tribunal must take into account any guidance which appears to it to be relevant.  

37.	The latest edition of that guidance was issued in 2008.  In the context of this case, and in the context of the argument referred to at paragraph 33 above, the content of paragraph D11 of the Guidance is particularly relevant:

	“D11.  An impairment may not directly prevent someone from carrying out one or more normal day-to-day activities, but may still have a substantial adverse long-term affect on how her or she carries out those activities.  For example:

•	pain or fatigue: where an impairment causes pain or fatigue in performing normal day-to-day activities the person may have the capacity to do something but suffer pain in doing so ...”.

38.	Against that background, and for all of those reasons, I have concluded that, at all times that are relevant for the purposes of the claimant’s discriminatory dismissal claim, the claimant was a disabled person within the meaning of the DDA.	

Employment Judge:

Date and place of hearing:  4 April 2016, Belfast.

Date decision recorded in register and issued to parties: