THE INDUSTRIAL TRIBUNALS

CASE REF:	936/17

CLAIMANT:			Michael Murray

RESPONDENT:		Curve Craft Ltd

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant’s claim to amend the originating claim to include a complaint of unfair dismissal is granted.

Constitution of Tribunal:
Employment Judge (sitting alone):	Ms M Bell
Appearances:
The claimant was represented by Mr J Brown.
The respondent was represented by Mr P Murray, Director of the respondent company (on telephone link). 

1.	At the outset of the hearing Mr P Murray, with the consent of the claimant, applied for the hearing to be conducted by the use of telephone link under Rule 15(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, having failed to attend in person as the result of a misconception that the proceedings would be conducted in this way, the application was allowed on the basis that it was just and equitable to do so.  

2.	The claimant presented a claim to the tribunal on 20 February 2017.  At Section 7 ‘Details of your claim’ the claimant left bank the tick box at Section 7.1(a) to indicate that unfair dismissal was a type of complaint that he wished the tribunal to consider, but completed boxes at Sections 7.1(b) and (c) to indicate that he was claiming a redundancy pay, five weeks’ notice pay of £480, arrears of pay, holiday pay, and six weeks’ redundancy at 1.5 weeks’ pay of £4,320.  Under Sections 7.4 and 8 which request details to support  the claim and other information respectively, the claimant over three pages set out his complaint that that the respondent, in summary:- had failed to give him proper notice; was required to pay him 14 weeks’ pay of £6,720; on 5 January 2017 gave him one week’s notice of termination of his employment; on 12  January 2017 presented him with a letter of acceptance for a redundancy payment of £4,320 which he signed; thereafter alleged a break in the claimant’s continuity of employment and contended the claimant was entitled to a lesser amount of £3120; on 20 January 2017 paid £640 into the claimant’s bank account which the claimant sent back with a letter of grievance ‘as to how my employment was being ended’ ; sent a letter which the claimant received on 26 January 2017, with a proposed payment plan and cheque for £640, which payment the clamant returned.  Lastly the claimant set out:-

“On Friday 10th of Feb I received a letter from Curve [C]raft Ltd blaming the closure of the workshop on me and my work.  At the end of the letter they proposed that they would pay the amount agreed to me on the 12th of Jan, because of the way Curve [C]raft Ltd has treated me to date I refused this and have asked the Labour [R]elations Agency for advice, after talking to LRA I have made a claim through yourself for the full amount owed.”

3.	The respondent presented a response on 13 March 2017 resisting the claimant’s claims in respect of notice pay and redundancy payment entitlement based upon a break in the claimant’s continuity of employment, thereby reducing his entitlement.  

4.	At a Case Management Discussion on 8 May 2017 the claimant’s representative sought to amend the claim form to include a claim for unfair dismissal, it always having been the claimant’s intention to include one, but which did not appear to be contained within the originating claim form.  Accordingly this amendment pre-hearing review was directed.

Issue

5.	The issue to be determined by the tribunal is:-

“Whether the claimant’s claim requires amendment to include an unfair dismissal claim.  If the claim requires such an amendment, whether it was not reasonably practicable for that claim to be lodged within the requisite time-limit and, if so, whether time should be extended to enable that claim to be considered and determined by the tribunal.”

The law

6.	In deciding whether to exercise the discretion to allow or refuse the amendment application the test to be applied by the tribunal is one of balancing the relative injustice and hardship involved either way (Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650).  In Selkent Bus Co Ltd  v  Moore [1996] ICR 836 the EAT set out guidelines for tribunals to follow when deciding whether to allow substantial amendments to claim forms.  In determining whether to do so it was confirmed that the tribunal must carry out a careful balancing exercise of all the relevant factors (including the nature of the amendments, applicability of time-limits, timing and manner of the application), having regard to the interests of justice and to the relevant hardship that will be caused to the parties by allowing or refusing the amendment.  A distinction in case law  is drawn between  amendments which add or substitute a new claim arising out of the same facts as the original claim and those that add a new claim entirely unconnected to the original claim.  Regard must be had to the whole originating claim.  Where the originating claim discloses the facts on which such a claim can be discerned, tribunals are encouraged to adopt a flexible approach and allow amendments which change the nature of the relief sought; such claims should be considered under the general principles in Selkent and not subjected to scrutiny in respect of time limits.  Time limits are a factor however required to be considered where the amendment raises entirely new claims unconnected with the original claim as pleaded (albeit not alone determinative).

7.	In Beezley  v  The Post Office & Anor [EAT/612/98] the EAT upheld the claimant’s appeal of a refusal to allow amendment of her originating claim form which detailed a complaint of sexual harassment, to include an unfair dismissal claim, because the factual matters upon which her unfair dismissal complaint was grounded had already been pleaded in her originating claim.  The EAT stated that refusing leave to amend would lead to a risk of injustice to the claimant, whereas granting leave to amend would not expose the respondent to hardship other than exposing them to the risk of a decision and remedy against them.

8.	To decide whether the proposed amendment amounts to a ‘change of label’ or a wholly new claim, examination of the case set out in the originating claim is necessary to determine whether there is a ‘causative link’ (Housing Corpn  v  Bryant [1999] ICR 123 CA ).

9.	In Street  v  Derbyshire Unemployed Workers’ Centre [2005] ICR 97, EAT, a tribunal decision to refuse the claimant’s amendment application to add an ‘ordinary’ unfair dismissal claim was reversed by the EAT on the basis that the claimant had failed to realise that, within the originating claim, there was the basis of a claim for ‘ordinary’ unfair dismissal that simply needed particularisation.  It is clear there is a fine line between raising a claim that has a link to the existing claim as opposed to raising a new claim for the first time.  

10.	In Ali  v  Office of National Statistics 2005 IRLR 201 the Court of Appeal considered a general description of the complaint in the originating claim insufficient and necessary for the claimant to set out the specific acts complained of.  The discretion to allow additional claims based on whether a claim may be gleaned from facts pleaded is not limitless.  An employer is entitled to know the case they have to meet.
	
Submissions

11.	Mr Brown submitted that the claimant’s dismissal was unfair on the basis that the respondent failed to follow required redundancy procedures and that he and the claimant had both believed that the originating claim form as drafted had included a claim of unfair dismissal, which in effect would be apparent to the tribunal arising from the respondent’s dismissal and treatment of the claimant as described, and they had continued in that belief until the Case Management Discussion on 8 May 2017.  

12.	It was contended on behalf of the claimant that the hardship of not allowing amendment would be denial to the claimant of his employment rights and loss of potential compensation, specifically, loss of earnings for the two month period the claimant was unemployed following his dismissal and which might have otherwise have been mitigated against if proper notice and redundancy procedures been followed prior to his dismissal.  

13.	The respondent resisted the claimant’s amendment application on the basis that a claim of unfair dismissal was not included in the originating claim and is now outside the requisite three month time-limit from the date of termination.  

CONCLUSION 

14.	On consideration of the above I am of the opinion that the facts as pleaded whilst they do not clearly specify an unfair dismissal claim, they do support an unfair dismissal claim which is not entirely unconnected with the original claim and in respect of which there is a ‘causal link’, based upon the following particulars given:- ‘ On the 5th Jan my employer handed me a letter to say that my employment would end on the 12th Jan 1 week later’, also,  ‘which I sent back with my letter of  grievance as to how my employment was being ended’ together with ‘at the end of the letter they proposed that they would pay the amount agreed to me on 12th of January, because of the way Curve Craft Ltd has treated me to date I refused this and … I have made a claim through yourselves for the full amount owed’.  I consider that addition of a claim of unfair dismissal to the types of complaint sought by the claimant to be considered by the tribunal is possible without requirement for further amendment to the claim form.  Whilst scrutiny in respect of time limits is not required where the originating claim discloses the facts on which such a claim can be discerned, I in any event accept that until the CMD on 8 May 2017 the claimant believed that an unfair dismissal complaint (which would have been required to be presented by 13 April 2017) was included in his claim and note an amendment application was made at the CMD immediately on the claimant becoming aware that an unfair dismissal complaint was not apparent in the originating claim and  consider that in the circumstances it was not otherwise reasonably practicable for it to be presented earlier and there was no delay on it becoming apparent. 

15.	Overall, on balancing relative hardship and injustice, I consider refusal of leave to amend would lead to a greater risk of injustice to the claimant in his loss of potential compensation than to that otherwise caused to the respondent by way of the risk of a decision and remedy against them.  The claimant’s application is accordingly granted to amend the originating claim to include a claim of unfair dismissal and the respondent is given 10 days from the date hereof to present an amended response arising out of this amendment should the respondent wish to do so. 

Employment Judge:

Date and place of hearing:	8 June 2017, Belfast.

Date decision recorded in register and issued to parties: