THE INDUSTRIAL TRIBUNALS

CASE REF:	529/17

CLAIMANT:			Craig Fitzgerald

RESPONDENT:		Chief Constable of the Police Service of Northern Ireland

DECISION ON A PRE-HEARING REVIEW
The tribunal orders that the claimant is permitted to amend his claim form to include a claim for harassment contrary to section 4(3) of the Disability Discrimination Act 1995.  

The tribunal orders that Legal Issue 6 and Factual Issue 15 (b) in the Statement of Issues should remain to be determined by the tribunal hearing the case.  Factual Issues 15 (a) and (b) should be removed from the Statement of Issues and a revised document produced in its place.

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge Browne

Appearances:

The claimant was represented by Ms A McLarnon, Barrister-at-Law instructed by Edwards & Company Solicitors.

The respondent was represented by Ms R Best, Barrister-at-Law instructed by the Crown Solicitor’s Office.

THE BACKGROUND
1.	Broadly stated, the claimant lodged a claim against the respondent on 
13 January 2017 arising from alleged discrimination on the grounds of disability between May 2016 and the end of November 2016.  The claimant alleges he only realised at the end of November that he had been duped by the respondent about finishing an armed response training course from which he had previously been removed due to his hearing disability. 

2.	The respondent refutes the entirety of the claimant’s case, and also challenges the jurisdiction of the tribunal to deal with matters more than three months before the claimant lodged his claim form with the tribunal.  Those issues are to be resolved by a full tribunal hearing.

3.	In the course of the exchanges between the parties in preparation for the hearing of the case, a statement of legal and factual issues was drawn up.  In addition to the specific heads of claim identified from the outset in the claimant’s claim form, he then sought to introduce at section 6 of the legal issues a new head of claim of harassment.  He also sought at section 15 of the factual issues to invite the tribunal determining the case to decide if the claimant had been subjected to harassment because of his disability because of alleged conduct by three named officers employed by the respondent. Those three officers were named by the claimant in an internal grievance raised by him in December 2016 arising from their treatment of him in connection with the armed response training which later became the core of these proceedings.

4.	The respondent objects to the addition of these legal and factual issues, on the ground that it is the first time they have been articulated, either in the claimant’s claim form or in the course of the preparatory documentation and hearings.  The respondent contends that to permit the claimant now to amend his claim to include a claim of harassment falls outside the principles summarised in Selkent Bus Co Ltd -v- Moore [1996] IRLR 661 of the proper focus of the tribunal when considering an application to amend a claim.

5.	As regards any concerns that the respondent might be prejudiced by a last-minute addition of a head of claim, the respondent in this case was placed on notice of the claimant’s intention to seek to amend his claim when the statement of legal and factual issues was produced in April 2017, well in advance of the hearing, listed for 
October 2017.  As such, there is not in my opinion any such practical prejudice to the respondent.

6.	The substance of the application by the claimant appears to be that it should be viewed as a “claim within a claim”, as the claimant has given a clear indication that he intends in the course of his evidence to make reference to the aggressive manner in which he was treated by the officers in charge of his training course.  Even if the tribunal ultimately is not satisfied as to the overarching claim of disability discrimination, it would still be open to the tribunal to reach a finding in favour of the claimant regarding individual conduct towards him amounting to harassment.

7.	The claimant’s contention appears to be that there is therefore no need in this case for further primary facts to be established in pursuit of an additional claim of harassment, as that same conduct will be alleged and challenged in the same way as if only the claim of discrimination were before it.

8.	The respondent makes the case that the claimant did not attend in person to give evidence, and to be questioned, as to why he omitted specific reference in his ET1 form, when submitting his claim to the tribunal, to the aggressive and hostile conduct he now alleges.  I do not attach great weight to that argument, as he was professionally represented at the hearing, and his counsel was able to put forward cogent arguments on his behalf.

9.	In making the claimant’s case for permission to add the new factual and legal issues, the claimant’s counsel made the point that the claimant was not legally represented at the time he filled in his application form.

10.	I have had regard to the contents and structure of that application form.  It appears to me to give a strong indication of careful and purposeful construction, with a detailed narrative, structured in such a way as to indicate a clear awareness on the part of its author as to the requirement to detail for the reader the salient incidents which comprised the evidential elements amounting to the discrimination to which the claimant alleges he was subjected.

11.	Even if the claimant at that time was unaware of the nature or requirements of a separate head of claim of harassment, such a comprehensive narrative might reasonably be expected to include specific reference to aggressive or hostile conduct towards him by the main characters involved.

12.	The only allegation in the claimant’s ET1 form of behaviour which might potentially amount to conduct giving rise to a separate head of claim of harassment appears to me to be that relating to Inspector Luney on 5 May 2016.

13.	Harassment for the purposes of the Disability Discrimination Act 1995 is defined in section 3B of that Act:
 
“(1)	For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person’s disability, he engages in unwanted conduct which has the purpose or effect of—

(a)	violating the disabled person’s dignity, or

(b)	creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2)	Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.]”

14.	I have concluded that no satisfactory explanation has been provided on behalf of the claimant as to why he did not include any mention in an otherwise comprehensive and focused narrative of aggressive or hostile conduct, other than that alleged against Inspector Luney on 5 May.

15.	The inclusion of the allegation about Inspector Luney’s behaviour sits uncomfortably with a glaring absence of any allegation of aggressive language or conduct by officers from the narrative of the other meetings.  Again, in the context of an otherwise free-flowing and well-structured narrative, there has been no satisfactory explanation advanced on behalf of the claimant as to how he could have failed to include allegations of such conduct by other officers. 

16.	In addition, I note that the claimant states in his claim form that it was only on 
21 November that he realised that he had been duped in to signing the form on 
10 May, which he on page 12 of his claim form refers to as what “…was agreed [my emphasis] at the meeting…” on 10 May.  Such deception alleged by the claimant in itself runs contrary to what he now alleges, in terms, to have been aggressive conduct, browbeating him into submission. 

17.	His choice of words about 10 May when filling in the claim form, despite having full knowledge of what occurred, is not in my view capable of now being interpreted as lending support to the view that he simply failed to include reference to what he now says was their conduct.  The claimant in my view has failed to provide a satisfactory explanation for its omission.

18.	I have concluded that the groundwork for a claim of harassment against Inspector Luney on 5 May 2016 was laid by the claimant in his claim form.  I additionally am satisfied that there is little if any prejudice to the respondent by permitting him to add a head of claim for harassment in the terms of Legal Issue 6 in the Statement of Issues. 
 
19.	I therefore order that Legal Issue 6 and Factual Issue 15 (b) should remain to be determined by the tribunal hearing the case.  Factual Issues 15 (a) and (b) should be removed from the Statement of Issues and a revised document produced in its place.

	

Employment Judge:

Date and place of hearing:     19 June 2017, Belfast.

Date decision recorded in register and issued to parties: