Cassidy v Belfast City Council Belfast City Council Belfast City Council [2012] NIFET 00146

FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 146/10 FET

147/10 FET

148/10 FET

CLAIMANTS: Damien Cassidy

Liam Garland

William Magee

RESPONDENT: Belfast City Council

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is as follows:-

(1) The first and second claimants each failed to set out their grievance in respect of their claim of discrimination by way of victimisation occurring after 5 December 2009, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998, in writing and send a copy of it to the respondent , pursuant to Section 20 of the Employment (Northern Ireland) Order 2003 and the Tribunal therefore does not have jurisdiction to hear the claims of each claimant. The claims are therefore dismissed, the first and second claimants having withdrawn their claims of discrimination, pursuant to the 1998 Order, in relation to acts occurring before 5 December 2009.

(2) The claim of the third claimant did not include a claim of disability discrimination. The Tribunal refuses the application of the third claimant for and an order for leave to amend his claim to include a claim of disability discrimination. The claim of the third claimant is therefore dismissed, the third claimant having withdrawn his claim of discrimination, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimants were represented by Mr R McNamee, Barrister-at-Law, instructed by McGuinness & Canavan, Solicitors.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Director of Legal Services, Belfast City Council.

Reasons

1.1 This pre-hearing review was arranged to determine the following issues in relation to the above claims, which were agreed by the parties and their representatives:-

(1) Have Liam Garland and Damien Cassidy raised grievances in respect of any alleged acts of discrimination and victimisation occurring after 5 December 2009 in accordance with Section 20 of the Employment (Northern Ireland) Order 2003?

(2) If not, does the Fair Employment Tribunal have jurisdiction to deal with any such alleged acts that occurred after 5 December 2009?

(3) If so, have the applications alleging such acts of discrimination been made within the time-limits under Section 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998, as amended by Article 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004?

(4) If not, is it just and equitable to admit such applications out of time in accordance with Section 46(5) of the Fair Employment and Treatment (Northern Ireland) Order 1998?

(5) Does the originating application lodged by William Magee on 28 October 2010 include a claim for disability discrimination?

(6) If not, can his originating application be amended to include a claim for disability discrimination?

(7) If so, has the application for disability discrimination been lodged within the time-limits set out in Schedule 3, Paragraph 3 of the Disability Discrimination Act 1995, as amended by Article 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004?

(8) If not, is it just and equitable to admit such application out of time in accordance with Schedule 3, Paragraph 3(2) of the Disability Discrimination Act 1995?

1.2 At the outset of the hearing, the Tribunal sought to clarify the said issues referred to above. Firstly, it was agreed that, although the claims of the first and second claimant had initially raised various claims of acts of discrimination, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘the 1998 Order’) which occurred before and after 5 December 2009 the only claims which the first and second claimants were still requiring the Tribunal to determine were their claims of acts of discrimination by way of victimisation, pursuant to the 1998 Order, occurring after 5 December 2009; and the claims relating to acts occurring before 5 December 2009 were therefore withdrawn. The remaining issues, therefore, for the Tribunal to determine related to whether each of the first and second claimants had raised grievances in respect of those said acts pursuant to the statutory grievance procedures contained in the Employment (Northern Ireland) Order 2003. It was not disputed by the parties that, if the Tribunal found that statutory grievance procedures had not been complied with, the Tribunal would therefore not require to determine Issues 3 and 4, as set out above. It was further agreed that, if the Tribunal found the statutory grievance procedures had not been complied with, the Tribunal therefore would not have jurisdiction to hear the said claims; and further, in light of the said withdrawals, all the claims of the first and second claimant, the subject-matter of these proceedings would require, in the circumstances, to be dismissed by the Tribunal.

1.3 It was further agreed by the parties that, in relation to the claims of the third claimant, the third claimant was no longer pursuing his claims of discrimination pursuant to the 1998 Order and he would therefore be withdrawing them at the conclusion of this pre-hearing review; but he was seeking to make a claim, in the alternative, of disability discrimination, pursuant to the Disability Discrimination Act 1995, as amended. Again, it was not disputed that, if the Tribunal did not find that his claim form included a claim of disability discrimination, and, if not, the Tribunal then refused to grant leave to amend his said claim, the Tribunal would not therefore require to determine Issues 7 and 8, as set out above; and, in the circumstances, the claimant’s claims, the subject-matter of these proceedings, would therefore require to be dismissed by the Tribunal, having been withdrawn in the circumstances, as set out above.

2. Damien Cassidy and Liam Garland (first and second claimants)

2.1 The first claimant wrote to the respondent on 5 December 2009 in which he stated, inter alia:-

“Nature of grievance religious discrimination

My name is Mr Damien Cassidy and hold the post of TN Driver working out of Dunbar Cleansing Yard.

I wish to initiate the grievance procedure as I believe I am been [sic] discriminated against in relation to my religion by Belfast City Council, Mr Mark Lowden (Manager) and Mr Jim Ferguson … .”

2.2 The second claimant wrote to the respondent on 5 December 2009, in similar terms, in which he stated, inter alia:-

“Nature of grievance religious discrimination

My name is Liam Garland and I work as a Sweeper/Labour with Belfast City Council in Dunbar Yard.

I wish to initiate the grievance procedure as I believe that I am been [sic] discriminated against in relation to my religion by Belfast City Council, Mr Mark Lowden (Manager) and Mr Jim Ferguson … .”

2.3 It was not disputed by the respondent that these letters were proper grievances for the purposes of the statutory grievance procedures contained in the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) (see later) in relation to the matters complained of therein, namely those acts of discrimination occurring prior to 5 December 2009.

These grievances, were subsequently investigated by the respondent and were the subject of internal grievance hearings/appeals, which ultimately resulted in the dismissal of the said complaints, the subject-matter of the said grievances.

These complaints, the subject-matter of the said grievances, were included in the claims of religious discrimination brought by the first and second claimants to the Tribunal on 28 October 2010; but which, as stated previously, neither the first claimant nor the second claimant now wished to proceed with.

The claims, which were presented by the first claimant and the second claimant, in their claim forms presented to the Tribunal on 28 October 2010 also relied on acts of discrimination by way of victimisation, pursuant to the 1998 Order, which occurred after 5 December 2009, relying on, as a ‘protected act’, the said grievances dated 5 December 2009 which were sent to the respondent by each of them, as set out above.

2.4 In essence, the focus of the first issues to be determined by the Tribunal in respect of the first and second claimants (see Issues 1 and 2) related to whether, in respect of those claims of victimisation pursuant to the 1998 Order, brought by the first and second claimants in their claims presented to the Tribunal on 28 October 2010 satisfied the statutory grievance procedures, pursuant to the 2003 Order.

It was not disputed that the claim forms themselves could not satisfy the said statutory grievance procedures (see Gibbs t/a Jarlands Financial Services v Harris [UKEAT/0023/07; Step in Time Ltd v Fox [UKEAT/0031/08).

2.5 The claim of discrimination by way of victimisation, pursuant to the 1998 Order is a claim that is subject to the statutory grievance procedures contained in the 2003 Order.

Article 20 of the 2003 Order provides:-

“(1) An employee shall not present a complaint to the Fair Employment Tribunal under Article 38 of the Fair Employment and Treatment (Northern Ireland) Order 1998 if –

(a) it concerns a matter in relation to which the requirement in Paragraph 6 or 9 of Schedule 1 applies; and

(b) the requirement has not been complied with.

(5) The Fair Employment Tribunal shall be prevented from considering a complaint presented in breach of Paragraphs (1), (2), (3), but only if –

(a) the breach is apparent to the Tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings; or

(c) the Tribunal is satisfied that the breach is a result of his employer raising the issue of compliance with those provisions in accordance with Regulations under Article 84 of the Fair Employment and Treatment Order (Procedural Regulations).”

Schedule 1 of the 2003 Order provides:-

“Standard procedure –

Step 1 : statement of grievance

6. The employee must set out the grievance in writing and send a statement or a copy of it to the employer;

…

Modified procedure –

Step 1 : statement of grievance

9. The employee must –

(a) set out in writing –

(i) the grievance; and

(ii) the basis for it; and

(b) send a copy of it to the employer.

… .”

(It was agreed the modified procedure was not relevant to this matter.)

2.6 The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’) define grievance in Regulation 2 of the 2004 Regulations as follows:-

“Grievance means a complaint by an employee about actions which his employer has taken or is contemplating taking in relation to him.”

There was no dispute between the parties that the respondent had properly raised, under the relevant Rules of Procedure, the issues of jurisdiction in relation to whether the first and/or second claimant had satisfied the statutory grievance procedures in relation to their claims of discrimination by way of victimisation under the 1998 Order. (See further Article 20(5) of the 2003 Order above.)

If the said statutory grievance procedures had not been complied with by the first and second claimant, then Article 20(1) provides:-

“ … an employee shall not present a complaint … .”

2.7 What is a grievance, for the purposes of the statutory procedures, has been the subject of considerable legal authority in Great Britain, following the introduction of the statutory grievance procedures in Great Britain in October 2004 and subsequently in Northern Ireland in April 2005. The statutory grievance procedures introduced in Great Britain, and subsequently in Northern Ireland, are in similar terms. To date, there has not been any relevant decisions of the Northern Ireland Court of Appeal in relation to the statutory grievance procedures. In such circumstances, therefore, the decisions of the Employment Appeal Tribunal in Great Britain and/or the Court of Appeal in England & Wales and the Court of Session in Scotland are of considerable persuasive authority; albeit they are not binding on this Tribunal. There is no doubt that, in the said legal authorities, the statutory grievance procedures have been the subject of much criticism and, as a consequence, have now been abolished in Great Britain by virtue of the Employment Act 2008 and in Northern Ireland by the Employment Act (Northern Ireland) 2011 (subject to transitional provisions). However, for the purposes of these proceedings, the statutory grievance procedures, set out in the 2003 Order and the 2004 Regulations were relevant and required to be complied with.

In the case of Canary Wharf Management Ltd v Edebi [2006] IRLR 416, Elias P stated:-

“ … It seems to me that the objective of the statute can be fairly met if the employers, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint has been raised. … If the statement cannot in context be read even in a non-technical and non-sophisticated way as raising the grievance which is the subject-matter of the Tribunal complaint, then the Tribunal cannot hear the claim. There is no overriding interest of justice which can be invoked to save it.”

In the case of Ward v University of Essex [UKEAT/0391/07] the Employment Appeal Tribunal held at Paragraph 32:-

“ … Essential characteristic of the grievance letter is that the employer should be put on notice of what the employee is complaining about … .”

Further, in the case of Royal Mail Letters & Others v Muhammad [UKEAT/0392/97], the Employment Appeal Tribunal upheld an employer’s appeal that an employee had not complied with Step 1 in relation to a discrimination case when simply setting out the factual matrix of a complaint. HHJ Pugsley held that:-

“ … letter of grievance [must] spell out, though not in formal terms, whether the employee considers he or she has been discriminated against unlawfully and it does not suffice to set out factual complaints which theoretically found such an application.” (Paragraph 18)

The EAT in the case of Sadare v London Borough of Lambeth [2009] AER(D) 28 similarly confirmed that it was necessary for the purposes of [Article 20 of the 2003 Order] that the employer should have been able to understand the legal character of the complaint being made.

In the case of Shergold v Fieldway Medical Centre [2006] ICR 306, Burton J held that the statutory requirements in relation to a Stage 1 Grievance Letter are minimal in terms of what is required. It is simply that the grievance must be set out in writing. There is no requirement for the Step 1 letter to set out the exact nature of the case or to be identical to the subsequent Tribunal claim, provided there is a material similarity. In the case of Arnold & Others v Sandwell Metropolitan Borough Council [2008] UKEAT/0332, Elias P at Paragraphs 15 – 16 of his judgment, which was subsequently approved by the Court of Appeal (and is known as Hurst v Suffolk Mental Health Partnership [2009] EWCA Civ 309) stated the following principles were, in his judgment, clearly established from the authorities:-

“(i) The underlining purpose of the statutory grievance procedures is to seek to encourage conciliation and to avoid disputes having to be resolved by a Tribunal. The provisions are to be construed having that purpose in mind.

(ii) In determining whether a statement amounts to a grievance or not, the appropriate test is the following … :-

‘The grievance documents require to be in such terms that, on a fair reading of it, the employer can be expected to appreciate that a relevant complaint has been raised …; he needs to be able to understand from the grievance document what is the general nature of the complaint that is being made …’

(iii) When construing the grievance – and this must comply both to the issue of whether a statement raises a grievance at all, as well as what complaint is identified by the grievance, the context is important. …

(iv) It is inappropriate to carry out an unduly technical or over sophisticated approach to construing a grievance …

(v) It is enough in relation to Step 1 of the statutory grievance procedure to identify the complaint …

(vi) The statement of grievance must be a statement of essentially the same complaint as the employee is seeking to have determined in the Tribunal … . In this context, however, it must be borne in mind that the grievance document and the claim form are designed to achieve different objectives and are addressed to a different audience …

(vii) In accordance with European law principles, the procedural requirements, looked at in context, should not be applied so as to render access to the Employment Tribunal impossible in practice or excessively difficult … this question needs to be looked at broadly … .”

Whilst there is no doubt the underlining purpose of the statutory grievance procedures is, as stated in Arnold, to seek and to encourage conciliation and to avoid disputes having to be resolved by a Tribunal, this does not avoid the necessity for compliance with the statutory provisions, as interpreted in the various authorities referred to above. Indeed, as Lord Justice Pill, on appeal, made clear, it is in the interests of potential claimants to initiate the statutory procedure in a constructive way, which is conclusive to the successful negotiation. This, however, does not absolve a claimant from initiating the procedure as required, albeit negotiations to resolve the dispute are going on. I have no doubt that Mr Kevin McKinney, the claimants’ trade union representative, at all material times throughout the hearings of the grievance hearings/appeals, referred to above, was seeking to resolve all issues, in a way which he described ‘as a form of shuttle diplomacy’. However, if the statutory procedures have not been complied with, as interpreted, then, as set out in Edebi, the Tribunal cannot hear the claim and there is no overriding interests of justice which can be invoked to save it.

2.8 Neither the first claimant nor the second claimant, at any time, after sending to the respondent their initial letters of grievance on 5 December 2009, wrote letters to the respondent and/or made statements in writing to the respondent, similar to those sent by them on 5 December 2009, setting out their respective grievances of acts of discrimination by way of victimisation. Such a letter/statement in writing to the respondent would only have had to set out sufficient so that the respondent would have appreciated, looking at the document in a non-technical, non-sophisticated way that the first claimant and/or the second claimant was raising a grievance of discrimination by way of victimisation in relation to acts carried out by the employer after the first claimant and second claimant had written their initial letters of grievance dated 5 December 2009. The difficulty, in my judgment, for the first and second claimants was that no such letter/statement was sent by either of them to the respondent at any time.

2.9 In essence, the first and second claimants sought to rely on various references, which are set out in the minutes of the various grievance hearings/appeals, which were instigated by the respondent following the said initial letters of grievance dated 5 December 2009. There is no doubt that there are references, made by the first and/or second claimants and/or Mr McKinney, on their behalf, in these said minutes. These minutes were taken by the respondent’s note taker, copies of which were subsequently provided to Mr McKinney and/or the first and second claimants, as part of the normal grievance procedure of the respondent, following their initial grievance letters dated 5 December 2009. In considering these extracts to which I was referred to by counsel for the first and second claimants, and which I have considered very carefully, it has to be remembered that what the first and second claimants are seeking to establish is not that they have raised a grievance relating to a claim of direct religious discrimination; but rather they are seeking to establish they have raised a grievance showing each of them has been treated less favourably, because each of them carried out the protected act, namely initiating the initial grievance, as set out in their respective letters, dated 5 December 2009. I struggled to find, even reading these extracts in a non-technical, non-sophisticated way, that any such claim was in fact being made by the first and second claimants. As stated in the Muhammad case, it is not sufficient to set out factual complaints, which theoretically might have found such a claim. What is necessary, albeit not in formal/technical terms, is to spell out that the employee considers he has been victimised because of his protected act. (See further Step in Time Ltd v Mrs Fox and Hunter [2008] UKEAT.) In seeking to rely on these various extracts, the first and second claimants were asking the Tribunal to find a grievance had been set out on the basis of various sentences/paragraphs scattered at various places amongst the various minutes. This, in my judgment, was not sufficient. Indeed, by way of example, in the case of the first claimant, in an extract relied upon by his counsel, from the minute of the appeal hearing held on 9 June 2010 in respect of the appeal of the first claimant, Mr McKinney stated:-

“ … I am saying that if this case didn’t stop the day that you started to investigate it. This has been a continuation and I think it would be remiss of the panel not to take on board other supporting evidence that indicates that there is something still not right, yet and all there was opportunity to resolve it. I’ll come back to Jim’s statement if you’re finished with that redundancy bit because we believe there was a potential redundancy situation, potential. That was just his route that was being done away with, other routes had been done away with and it was classified as redundancy. Sam brought me in a couple of years ago; do you remember when they introduced the brown bins?”

Mr McNamee tried to suggest, in the course of his submissions, this extract, at best, in some way encapsulated the first claimant was making a claim of victimisation discrimination; albeit he had to also accept, it did not actually say it. There were numerous other similar examples in relation to both the first and second claimant; but, for the purposes of this decision, I do not think it is necessary to refer to each and every extract to which Counsel referred me. If it had been necessary to do so, I would have concluded that none of the extracts from these minutes of grievance hearings/ appeals would have satisfied the requirement, pursuant to Article 20 of the 2003 Order, that the first and second claimants had each set out the grievance in writing and sent a statement or copy of it to the employer. However, it was not necessary for me to do so; because, for the reasons set out in the following sub-paragraph of this decision, I reached the conclusion the first and second claimants were not entitled to rely on these said extracts, for the purposes of showing each had complied with the statutory grievance procedures.

2.10 Mr McNamee accepted these minutes of the grievance hearings/appeals were prepared during the grievance procedure by the respondent, as part of normal procedures and not as part of any special requirement and/or agreement made between the first and second claimants and/or Mr McKinney with the respondent. Seeking to persuade the Tribunal that, in the absence of any letter/statement in writing sent by the first and second claimants to the respondent, the first and second claimants were entitled to rely on the various extracts in the said minutes, Mr McNamee strongly relied on the Employment Appeal Tribunal decision in the case of Kennedy Scott Ltd v Francis [2007] UKEAT/0204. In that case, the Employment Appeal Tribunal focused on the requirement for the employee to set out his grievance in writing and to send a statement, or a copy of it, to the employer, as required by [Article 20 of the 2003 Order]. In the Kennedy Scott case, the employee had indicated to the Human Resources Manager he wished to make a number of complaints and asked her to send him the forms needed and any other information. The Human Resources Manager had replied saying that the claimant should raise his concerns informally with his line manager ‘who will record details of the grievance and attempt to resolve it with you’ [Tribunal’s emphasis]. The claimant then had a meeting with his line manager and notes, taken by the manager at the meeting, in light of the above arrangement, were relied upon by the claimant as constituting a statutory grievance. The EAT found that the situation was that the claimant and the manager were working together to put something in writing. The Employment Appeal Tribunal said that ‘the question is whether, with the emphasis on substance, this claimant can be said in these circumstances to have set out his grievance in writing and sent it to his employer. In my judgment, he can and the chairman was right so to conclude’. In another decision of the Employment Appeal Tribunal, in the case of Aramark v Yahiaoui [2009] UKEAT/0115, Burton J, in the Employment Appeal Tribunal distinguished the Kennedy Scott case describing its facts as unusual. Indeed, a factor in the Kennedy Scott case, which cannot be ignored and which may have had some relevance to the arrangements that were entered into, as set out above, was that the claimant was apparently dyslexic, which fact was known to the respondent. In the Aramark case, the Employment Tribunal, at first instance, found that the complaints, which were raised orally during the meetings, could be found to be in compliance with Step 1 of the statutory grievance procedure because a minute or note was taken of them. However, the Employment Appeal Tribunal, in overturning the decision of the Employment Tribunal, found that there was no arrangement that the employer should set out the grievance in writing on behalf of the employee and avoid the necessity for the employee to fill out the relevant forms. It found the only similarity with the Kennedy Scott case was that there was a minute-taker present at the meetings. In the absence of special circumstances, as in the Kennedy Scott case, and which I am satisfied did not exist in the case of the first and second claimants, I am not satisfied that the first and second claimants are entitled to rely on extracts from those minutes in order to satisfy the statutory grievance requirements.

2.11 In light of the foregoing, I therefore concluded that neither the first nor the second claimant had set out a grievance in writing, or sent a statement or a copy of it to the respondent, as required pursuant to Article 20 of the 2003 Order and that, therefore, the Tribunal does not have jurisdiction to consider and determine the complaints of discrimination by way of victimisation occurring after 5 December 2009, pursuant to the 1998 Order, made by the first and second claimants. The claims, therefore, must be dismissed.

3.1 In view of my said conclusion that the Tribunal did not have jurisdiction to consider and determine the said claims of the first and second claimants of discrimination by way of victimisation pursuant to the 1998 Order it was not therefore necessary, and I did not do so, determine the third and fourth issues referred in Paragraph 1. of this decision.

4. William Magee (the third claimant)

4.1 The third claimant presented a claim to the Tribunal on 28 October 2010. At Paragraph 7.1 of the claim form he ticked the relevant box indicating the type of complaint he wished the Tribunal to hear, namely:-

“Discrimination – religious belief/political opinion”

In Paragraph 7.4 of the claim form, he set out, in some detail, his said claim of discrimination on the grounds of religious belief, and which, as previously referred to, he is no longer pursuing; and which claim arose, in particular, from a reallocation of duties by the respondent on the Stranmillis Road, Belfast. The claimant did not tick the relevant box of the claim form to show that he wished to make a claim of disability discrimination.

Although the 2005 Rules of Procedure, which govern the acceptance of claims, whether before the Industrial Tribunals or the Fair Employment Tribunal, are stricter than the previous Rules of Procedure and require a claimant to set out the details of the claim, I am satisfied that the Tribunal are entitled to continue to adopt the previously recognised ‘flexible’ approach, when determining the nature of the claims that have been brought by a claimant before the Tribunal. (See further Burns International Security Services (UK) Ltd v Butt [1983] ICR 547, Dodd v British Telecom PLC [1988] ICR 166.) In particular, I am satisfied the absence of a ‘tick’ in the relevant discrimination box is not fatal in itself, provided it can be shown, from matters set out elsewhere in the claim form, and after considering the claim form as a whole, and in a non-technical way that a claimant has also made, for example, an alternative claim of unlawful discrimination on the grounds of disability, pursuant to the Disability Discrimination Act 1995 (see further Baker v Commissioner of the Police and the Metropolis [UKEAT/0201/09]).

As was held in the case of Grimmer v KLM Cityhopper (UK) [2005] IRLR 596:-

“ … accordingly, in determining whether an application to an employment tribunal contains ‘details of the claim’ as required under Rule 4(1), the test is whether it can be discerned from the claim as presented that the claimant is complaining of an alleged breach of an employment right which falls within the jurisdiction of the employment tribunal. If that test is met, there is no scope for either the Tribunal Secretary or a Chairman interpreting ‘details of the claim’ as being ‘sufficient particulars of the claim’. If it becomes necessary, as the case proceeds through the system, for further information or further particulars to be obtained, that can be done either on the application of a party or by a Chairman on his or her own initiative under Rule 10 … .”

In this particular case, in my judgment, there was nothing contained in the third claimant’s claim form, taken as a whole, from which it could be discerned the claimant wanted to bring a claim of disability discrimination, pursuant to the Disability Discrimination Act 1995 (‘the 1995 Act’). In particular, in Paragraph 7.4 of the claim form, when the claimant set out in detail his religious discrimination claim, there was, in my judgment, absolutely no reference to any issue, either express or implied, relating to any claim of disability discrimination.

The third claimant had not ticked the relevant box. As seen in the Grimmer case, a mere tick of the relevant box could have been sufficient. However, in the absence of such a tick or any other relevant reference, in the body of the claim form, I came to the conclusion the third claimant had not shown his claim form included a claim of disability discrimination, pursuant to the 1995 Act. In those circumstances, it was therefore necessary for the Tribunal to consider whether the Tribunal should make an order to grant leave to the third claimant to amend his claim to include a claim of disability discrimination, pursuant to the 1995 Act.

4.2 The third claimant’s claim form, presented to the Tribunal on 28 October 2010, was drafted and presented to the Tribunal online, on his behalf, by his trade union representative, Mr Kevin McKinney, an experienced trade union representative, who gave oral evidence to the Tribunal; and who had acted on behalf of all the claimants in these matters, both before and after the issuing of these proceedings, until Mr Canavan came on record for the claimants in or about June 2011. The third claimant set out a grievance in writing to the respondent, in accordance with the statutory grievance procedures, in which it was stated, inter alia:-

“The basis of the complaint (with specific allegations) is as follows:-

That you were discriminated against on the grounds of your religion in that Jim Ferguson and Mark Lowden changed your start time from 6.30 to 7.30 am without reasonable explanation. You were also [Tribunal’s emphasis] discriminated against on the grounds of your disability by JF as you were offered a post which you could not accept because of a medical condition which the service was aware of and given no alterative but to return to pool work. You also believe that this was actioned by JF to accommodate an employee of a different religion to be given this post.”

Thus, unlike the cases of the first and second claimants, it was not disputed by the respondent that the third claimant had complied with the statutory grievance procedure in relation to his complaint of disability discrimination.

Mr McKinney was closely involved representing the third claimant in all the various internal grievance meetings/appeal meetings relating to his said grievances relating to his claim of religious discrimination and disability discrimination, which took place during the course of 2010, culminating in a written decision by the respondent, following an internal appeal dated 28 September 2010, finding the said grievances were not substantiated.

4.3 The third claimant’s claim form to the Tribunal did not refer to any claim of disability discrimination, as set out above, but only to a claim of religious discrimination. The respondent, in its response form presented to the Tribunal on 2 December 2010, set out, in some detail, the history of the claimant’s grievances, both of religious discrimination but also disability discrimination and their outcome. The respondent expressly denied the claimant’s claim of religious discrimination stating:-

“the respondent strenuously denies it or its servants or agents have discriminated against the claimant on the grounds of his religion or on any basis whatsoever”;

but did not make such an express denial in any claim of disability discrimination, which, as set out before, was not a claim made on the claim form.

4.4 Mr McKinney accepted, in evidence, that it was an oversight on his part not to include in the claimant’s claim form the claim of disability discrimination and sought to excuse his failure to do so on the fact that the religious discrimination claims of all three claimants were ‘generic in nature’ and which he had handwritten before they were typed up on his behalf; but, when doing so, he had omitted to include in the third claimant’s claim the additional claim of disability discrimination and had not noticed his omission. He said he had not taken a copy of the online form at the time of presentation to the Tribunal and suggested, if he had done so, he might have noticed the omission. He was clear, in his evidence, that he had agreed with the third claimant that he would present to the Tribunal, on behalf of the third claimant, not only a claim of religious discrimination but also a claim of disability discrimination. He said that, following the outcome of the appeal as set out in the letter of 28 September 2010, in a further meeting with management in October 2010 he had continued to try to resolve the issues internally with the respondent and without the necessity to resort to Tribunal proceedings. However, he came to the conclusion, after this meeting, it was no longer possible. As a result, the third claimant’s claim, but also the claims of the first and second claimant, were presented by him to the Tribunal on 28 October 2010.

4.5 Following the presentation of the third claimant’s claim to the Tribunal and the respondent’s response, the Tribunal invited the parties and their representatives to a Case Management Discussion, in accordance with the Tribunal’s normal procedures. As the letter of invitation makes clear, one of the purposes of the Case Management Discussion is to identify the precise issues which the Tribunal has to consider. In recent guidance by the Court of Appeal in cases such as Veitch v Red Sky Group Ltd [2010] NICA 39, the Court of Appeal has emphasised the importance of identification of those issues, at such Case Management Discussions, which will require to be determined by a Tribunal. A Case Management Discussion was held on 23 February 2011 and Mr McKinney attended as the representative of the third claimant. One of the matters discussed, as set out in the Record of Proceedings dated 1 March 2011 was the statement of issues. It is apparent from the said record that the Chairman was not satisfied with the statement of issues, as drafted by the respondent’s representative and subsequently amended during the course of that hearing. Significantly, for the purposes of these proceedings, no disability discrimination claim by the third claimant was referred to or identified by either representatives of the parties at that Case Management Discussion. Mr McKinney sent a further amended statement of issues to the Tribunal on 11 April 2011 and again there was no reference by him to any claim of disability discrimination by the third claimant. At a Case Management Discussion on 12 April 2011 as set out in the Record of Proceedings dated 12 April 2011, when Mr McKinney again represented the third claimant, issues were once more identified and there was no reference, in either the factual or legal issues set out, to any claim by the third claimant of disability discrimination. Whilst I might have been prepared to accept, albeit with some difficulty, the omission by Mr McKinney of any reference to a disability discrimination claim when the claim was initially presented, I found his failure to subsequently raise any such issue less then credible. In particular, at no time during the course of the said Case Management Discussions – where issues were clearly discussed and subsequently identified and where Mr McKinney was the third claimant’s representative, did he make any reference to any such claim of disability discrimination by the third claimant. He and the third claimant were fully aware from the Record of Proceedings of those hearings, which were copied to each representative by the Tribunal, that the issue of disability discrimination had not been raised and was therefore not part of the claim which was going to be required to be determined by the Tribunal. As Mr Ferrity stated, in the course of submissions, the third claimant had raised an internal grievance in relation to disability discrimination and religious discrimination, neither of which were upheld, and only then brought a claim to the Tribunal of religious discrimination. He submitted, in such circumstances, the respondent was entitled to conclude the third claimant was no longer pursuing any claim of disability discrimination. This view, he submitted, was confirmed by the subsequent actions of the third claimant and his representative at a series of Case Management Discussions, when issues were identified and determined and recorded in Records of Proceedings; but no reference was made by the third claimant or his representative to any disability discrimination claim. It is apparent, as set out above, that the third claimant’s representative assisted in the drafting of the statement of issues finalised in the Record of Proceedings dated 12 April 2011; and which statement was agreed by him.

Indeed, it was not until the letter of 27 June 2011, when the third claimant’s present solicitor came on record, that the issue of any claim by the third claimant’s disability discrimination was raised and which has ultimately resulted in this pre-hearing review.

In particular, insofar as relevant, his said solicitor stated in the said letter:-

“3 William Magee worked with Liam Garland as a driver on the Stranmillis Cleansing run. After the positions were rationalised William Magee was offered the position of driver to work with David Graham. His duties would however have also involved some sweeping and as he suffered from a chest/respiratory condition he was unable to avail of the offer and was therefore moved back into the respondent’s pool of employees at the Cleansing Department. Mr Magee alleges that the rationalisation process per se was based on his religion and that the offer of employment with David Graham was discriminatory as he suffered from a disability and the respondents were aware when they offered him the job as driver that he could not sweep and therefore were discriminating against him because he had a disability. He also states that the respondents could have made reasonable adjustments given his chest condition to facilitate his employment as a driver/sweeper with David Graham but did not do so. Ultimately his driving position was given to Mr Howe (a Protestant) and Mr Magee alleges religious discrimination in this regard … .”

As set out previously, it must be recalled that, since this letter was written, the third claimant’s claim of religious discrimination is no longer pursued by the third claimant; but he now only wishes to bring a claim of disability discrimination, provided the Tribunal gives him leave to amend his claim to do so.

4.6 It was apparent from the foregoing, and, in particular, the respondent’s response to the claimant’s claim of religious discrimination but also the notes of the various meetings in relation to the grievance hearings/ appeals, that the respondent was not in a position, which Mr Ferrity properly accepted, to suggest any specific/particular prejudice, if the amendment to include a claim of disability discrimination was allowed by the Tribunal. However, it also has to be noted that Mr Ferrity made clear that, if the proposed amendment was allowed, the respondent does not accept that, at the material time, the third claimant was a disabled person for the purposes of the 1995 Act. It was also acknowledged by Mr McKinney, in evidence, that, as stated by Mr Canavan in his letter of 27 June 2011, referred to above, the third claimant’s claim of disability discrimination included not only a claim of direct disability discrimination but also a claim of failure by the respondent in its duty to make reasonable adjustments, pursuant to the 1995 Act.

4.7 Under Regulation 3 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the 2005 Regulations’), it is provided the Tribunal or Chairman shall seek to give effect to the overriding objective when it exercises any powers given to it or him by the Regulations. This includes the power, under Rule 9(2)(p) of the Rules of Procedure (contained in Schedule 1 of the Regulations), to enable a Chairman, as part of its case-management function, to make an Order to give leave to amend the claim in exercise of the Tribunal’s discretion.

The overriding objective of the Regulations is to enable Tribunals and Chairmen to deal with cases justly; and dealing with a case justly includes, so far as practicable:-

(a) ensuring that the parties are on equal footing;

(b) dealing with the case in ways which are proportionate to the complexity and importance of the issues;

(d) saving expense.

Girvan LJ, in his judgment in Peifer v Castlederg High School and Western Education & Library Board & Another [2008] NICA 49, which has now been approved in the case of Rogan v South Eastern Health & Social Care Trust [2009] NICA 47, emphasised these overriding objectives should inform the Court and Tribunals in the proper conduct of proceedings, including the exercise of its powers under the Rules of Procedure, such as the power to give leave to amend a claim. In light of the matters set out above, I have no doubt that, when considering whether to grant leave to amend the claim to include a claim of disability discrimination, the Tribunal has to take into account the terms of the overriding objective and, in particular, the risk of further delay and expense, in circumstances where it was not until the letter of 27 June 2011 that the issue of disability discrimination was first raised by the third claimant’s representative in connection with his Tribunal proceedings and which, in my judgment, will clearly require to be the subject of a further interlocutory process by both parties, involving further Notices for Additional Information and/or Discovery and Inspection and replies thereto and further Case Management Discussions, before the matter can be listed for hearing (see later).

4.8 In the well-known passage in Harvey on Industrial Relations and Employment Law (Division P1, Paragraph 311.03) it is stated:-

“A distinction may be drawn between –

(i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;

(ii) amendments which add or substitute a new course of action but one which is linked, or arises out of the same facts, as the original claim; and

(iii) amendments which add or substitute a wholly new claim of cause of action which is not connected to the original claim at all.”

There was no dispute that the proposed amendment fell within the first category of cases. Mr McNamee contended that the proposed amendment fell within the second category of cases; whereas Mr Ferrity contended the proposed amendment fell within the third category of cases.

It has long been established that, if the proposed amendment falls within the second category cases, it will not be subjected to scrutiny in respect of the time-limits, but will be considered under the general principles applicable to amendment, summarised in Selkent Bus Company v Moore [1986] IRLR 661; whereas, if it falls within the third category, the Tribunal must consider whether the new claim is in time and, if it is not, whether time should be extended to permit it to be made on just and equitable grounds. I concluded, given the manner in which the initial grievance was set out, there was a common set of facts/factual matrix in which the third claimant based his religious discrimination claim (no longer proceeded with) and his now proposed disability claim (see also his internal grievance), that this proposed amendment should be treated as falling into the second category and should be determined by me accordingly.

4.9 In the case of Transport & General Workers Union v Safeways Stores Ltd [2007] UKEAT/0092/07, Underhill J set out the leading authorities in relation to this issue of amendment and the principles to be followed by Tribunals. In summary, it is well-established from the said authorities referred to in that case, when exercising its discretion to grant an amendment, the Tribunal is required to take into account all the circumstances and relevant factors and, in particular, these include the nature of the amendment, the applicability of time-limits, if any, and the timing and manner of the application; but the paramount consideration remains, as referred to in Mummery J in the well-known case of Selkent Bus Company v Moore [1996] IRLR 661, namely:-

“The paramount considerations are the relevant injustice and hardship involved in refusing or granting an amendment.”

(See further Star Assets Management Holdings Ltd v Evershed [2010] EWCA Civ 870 and Enterprise Liverpool Ltd v Jonas & Others [2009] UKEAT/0112/09.)

However, as seen in Ali v Office of National Statistics [2004] EWCA Civ 1363 the balance of justice and hardship ground is little different, if at all, to the ‘just and equitable ground’, which applies in relation to extension of time in discrimination claims.

4.10 I am satisfied that this is a major amendment, and not a minor amendment, albeit I am also satisfied that there is the necessary common set of facts/factual matrix, as referred to previously, allowing this proposed amendment to fall within the second category of amendments referred to in Harvey. However, despite the said common set of facts/factual matrix, I am satisfied that the proposed amendment will greatly extend the scope of the issues and the evidence which will now require to be considered for the purposes of this disability discrimination claim. To date, the interlocutory process has solely related to the religious discrimination claim of the third claimant, not the disability discrimination claim. Issues relating to not only whether the third claimant was a disabled person within the terms of the 1995 Act but also issues directly relating to the direct disability discrimination claim and the claim relating to failure to make reasonable adjustments, have not been the subject of interlocutory enquiry; and many of those issues are very different to the issues relevant to a religious discrimination claim. Indeed, both representatives accepted that detailed interlocutory Notices would require to be issued by both of them. I have come to the conclusion that this further additional legal and factual interlocutory enquiry, by way of Notices for Additional Information and/or Discovery and Inspection, will not be of a minor/technical nature. In addition, given the respondent does not accept the third claimant was a disabled person, within the terms of the 1995 Act, medical issues/evidence will also require to be the subject of additional investigation and/or enquiry.

4.11 Further, as I have set out above, this application was first intimated on 27 June 2011, when the claimants’ present representatives came on record. Mr McKinney, who was the third claimant’s representative at the relevant time, has properly accepted that the failure to include the claim of disability discrimination, when it was presented to the Tribunal, was due to an omission on his part.

In Evershed v New Star Asset Management [2009] UKEAT/0249, Underhill P (Paragraph 33) stated:-

“It is not the business of the Tribunals to punish parties (or their advisers) for their errors. In very many, perhaps most, cases where permission is given to amend the pleading, the party in question could, if he had been sufficiently careful, have got it right first time round.”

However, I think this is a case where the failure of the adviser/representative cannot be so easily excused. Mr McKinney is an experienced representative, and at all times throughout the claimant’s internal grievance proceedings and the course of these proceedings, until Mr Canavan came on record in June 2011, he was the third claimant’s representative and he was therefore fully aware of the third claimant’s claim of disability discrimination. As I have stated previously, whilst I can understand, however unfortunate it may have been, that Mr McKinney omitted to include in the third claimant’s claim form his claim of disability discrimination, in circumstances where he was presenting generic religious discrimination claims on behalf of all three claimants, I find his continuing failure to draw attention to that omission, at any time thereafter, cannot be excused. Significantly, in my judgment, Mr McKinney was not able to provide any explanation for the fact that at no time, during the Case Management Discussions, did he either point out that he had made such an omission and/or he required to make an amendment application arising out of that omission. At all times, during the course of those Case Management Discussions, Mr McKinney had to be aware of the importance of identifying those issues and the reliance that would be placed upon that identification by both the Tribunal and the respondent (see Peifer and Rogan). At all material times and, in particular, during the course of the Case Management Discussions, until the solicitor’s letter of June 2011, the respondent had no reason to believe it was required to face a claim from the third claimant of disability discrimination at a Tribunal hearing. In light of the foregoing, Mr McKinney’s continuing failures at the Case Management Discussion demanded a proper explanation from him, but none was forthcoming. This has to be contrasted with his explanation for the failure to include the disability claim in the claim form. In the absence of any explanation, it is not for the Tribunal to speculate what may have been the reason.

In Veitch v Red Sky Group Ltd [2010] NICA 39, Girvan LJ, after referring to his guidance in Peifer, stressed the importance of identifying and properly identifying relevant issues (see Paragraph 21 of the judgment) (see further Wilcox v Birmingham CAB Services Ltd [UKEAT/0293/11] and Price v Surrey County Council and Another [UKEAT/0518/10 and the emphasis on proper identification of issues).

It has to be noted that, at the Case Management Discussion on 12 April 2011, in addition to the identification of issues, the Tribunal made relevant case-management directions/orders to enable the claims of all the claimants to be heard on 5 September 2011 to 16 September 2011, including a timetable for the preparation and exchange of witness statements. Following the intervention of the third claimant’s new solicitors in June 2011, the above hearing was taken out of the list, at a hearing on 4 August 2011, and this has led to this pre-hearing review.

Clearly, in addition to the interlocutory process I have referred to above, there will also require to be further Case Management Discussion(s) to give relevant case-management directions/orders in relation to re-listing of this matter, if leave to amend is granted, including a new statement of issues, timetable for witness statements, etc. In addition, the respondent will require to present an amended response, insofar as necessary, to any such claim of disability discrimination. It has long been held that an application for leave to amend should not be refused solely because there has been delay in making it unless the delay has caused prejudice; which, as set out above, has not been caused. Delay, in making the application, is however a discretionary factor. It is relevant to consider, in this context, why it was not made earlier and, in particular, during the course of the Case Management Discussion. As set out above, there has been no proper explanation for the failure to raise the issue of a claim for disability discrimination at that time. Certainly, it has not been suggested the delay was because of the discovery of new facts/new information from documents disclosed. Indeed, all relevant facts, for the purpose of any such claim have, at all material times, been known to the third claimant and his advisers. The necessity for the further interlocutory process and Case Management Discussion will involve not only further delay but some additional costs to the respondent, which may not be able to be recovered by the respondent.

4.12 Therefore, in light of the foregoing, and having regard to the terms of the overriding objective, I have concluded that the greater hardship and injustice, taking into account all the matters referred to in the previous sub-paragraphs, would be to the respondent if leave was granted to allow these additional claims under the Disability Discrimination Act 1995, as amended.

I therefore refuse the third claimant’s application for leave to amend his claim to include claims under the 1995 Act. Since the third claimant no longer wishes to pursue his claim of religious discrimination and it is therefore withdrawn, I therefore also dismiss the third claimant’s claim of religious discrimination.

5.1 In view of my conclusion that the third claimant’s claim of discrimination, pursuant to the 1995 Act is not included in his claim form and his application for leave to amend to include any such claim was refused, it was not necessary, and I did not do so, to consider and determine Issues 7 and 8, as set out in Paragraph 1. of this decision.

Chairman:

Date and place of hearing: 12 – 13 December 2011, Belfast

Date decision recorded in register and issued to parties:

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	Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Cassidy v Belfast City Council Belfast City Council Belfast City Council [2012] NIFET 00146_10FET (27 February 2012) URL: http://www.bailii.org/nie/cases/NIFET/2012/00146_10FET.html Cite as: [2012] NIFET 146_10FET, [2012] NIFET 00146_10FET

Fair Employment Tribunal Northern Ireland Decisions