FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   29/04 FET
2914/04

CLAIMANT:		Doctor John Edmund Moore

RESPONDENT:		Food Safety Promotion Board

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that an amendment to 29/04 FET is allowed to include a claim of race discrimination.  The claim of sex discrimination in 2914/04 is not an amendment.  It is outside the statutory time limit and the Tribunal does not exercise its discretion to extend the time limit.

Constitution of Tribunal:
Chairman:		Mrs Price (Vice President)

Appearances:
The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by The Equality Commission.
The respondent was represented by Mr W Atkinson, Barrister-at-Law, instructed by Carson McDowell, Solicitors.

1.	The claimant presented two claims to the Tribunals.  The first claim was dated 4 March 2004 and this was presented to the Fair Employment Tribunal.  At Paragraph 9 he described his complaints which related to failure to appointed to the post of Research Network Co-Ordinator (Cryptosporidium) to Food Safety Promotion Board.  He stated that he had not been successful in his application and believed that he was more experienced than the successful applicant, “and believe that I have been discriminated against on the grounds of religious belief and/or political opinion”.  This claim was within the statutory time limits because the act complained of was 8 December 2003.

2.	The Tribunal accepted that the claimant visited the Equality Commission shortly after lodging the application to the Tribunal and there was an application for funding on 18 March 2004.  The claimant’s evidence was not satisfactory in relation to what he did between March 2004 and October 2004 when he lodged a second claim raising the issue that he had been discriminated against on the grounds of race and/or gender.  This claim was registered on 29 October 2004.  The respondent objected to this claim being seen as an amendment of the earlier claim and requested a pre-hearing review.
Issues

3.	The issues for determination were:-

(i)	is the originating application, 29/04, capable of amendment?;

(ii)	if not, is the application to amend within time?; and

(iii)	if not, is it just and equitable to extend the time limit?

4.	From the evidence given by the claimant today, the Tribunal found that he is an intelligent man who genuinely believed, when he submitted his curriculum vitae with his application to the respondent, it alerted them to his race being British and political opinion being Unionist.  The Tribunal accepted that he believed his complaint in March 2004 did relate to his race.  He thought the respondent would have known his religious belief and his political opinion from his background described on his CV.  It was only when he had discussions with his legal advisers in the Equality Commission in September/October 2004 that he became aware that he would have to make a claim under the grounds of race.

5.	The Tribunal is satisfied that this is not an entirely new claim.  It is one which can be described as putting a new label on facts already pleaded.  The respondent was aware that this could be an issue because the claimant wrote to them in February 2004 and mentioned race in that letter.  They were aware of his complaint in relation to coming from Northern Ireland and failure to be appointed.  They are not going to suffer any prejudice by this claim being added to the existing claim and I find that the amendment is permitted to enable the claimant to proceed on the basis of a race claim as well as religious belief/political opinion.

Claim for sex discrimination

6.	The original claim should not be amended to include a claim for sex discrimination.  The claimant stated to the Tribunal that he had found out ‘on the grapevine’ that a female had been appointed.  He received this knowledge in December 2003.  He had a discussion with Doctor Quigley, who was Chairman of the panel, in January 2004 and he asked Doctor Quigley a number of questions.  He presented a Statutory Questionnaire to the respondent and during the period from March to October 2004 he became aware that there were two men and one woman as candidates for the job.  There were three women and one man who evaluated his qualifications and application form.  In other words, he was aware that there was a possible gender complaint.  He took no steps to present either a claim to the Tribunal during that period or to alert the respondent that he had a potential claim of sex discrimination.  The first that the respondent knew of this was when a claim was lodged on 29 October 2004.

7.	The Tribunal is not satisfied that this claim is merely a change of label.  It amounts to a wholly new claim.  The Tribunal has also considered the case of Ali  v  Office of National Statistics [2005] IRLR 201 and Housing Corporation   v  Bryant [1999] ICR 123.  As the amendment is not permitted, it is the case that the claim of sex discrimination is considerably outside the three month time limit.  

7.	Having considered the evidence given by the claimant as to the delay and why he did not put in a claim in relation to discrimination on the grounds of sex, the Tribunal is not satisfied that he took all reasonable steps to present this claim in time.  In considering the Tribunal’s discretion I do not find it would just and equitable to allow the claimant to present his claim of sex discrimination.  The Tribunal finds that there would be prejudice against the respondent as well.

8.	Accordingly, the claim, Reference 29/04FET, is amended to include a claim of discrimination on the grounds of race.  The claim contained in application 2914/04 in relation to sex discrimination is dismissed because it is a new claim and it is outside the statutory time limit provided for presenting such a claim.

Vice President:

Date and place of hearing:		20 January 2006, Belfast

Date decision recorded in register and issued to parties: