Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REF: 105/14FET

 

 

 

CLAIMANT:              Joanne Kelly       

 

 

RESPONDENT:        British Broadcasting Corporation

 

 

DECISION UPON A PRE-HEARING REVIEW

 

 

Constitution of Tribunal:

 

 

Employment Judge (sitting alone):      Employment Judge Murray       

 

 

Appearances:

 

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Savage and Co Solicitors.

 

The respondent was represented by Ms L Bryson of A&L Goodbody Solicitors on behalf of Ms Heyhoe of British Broadcasting Corporation Legal Department.

 

 

1.       The application today is set out at paragraphs (a) and (b) underlined in the attached document.  The issued narrowed today so that the issue before me is whether it is necessary to amend the claim form to include a claim that Cathy Martin treated the claimant less favourably on grounds of her disability after the claimant returned from sick leave in October 2010 until the end of 2014, in that the claimant alleges that she was excluded from private meetings and “away days” from October 2010, being the date when the claimant returned from sick leave.

 

2.       Mr Potter relies on Category 1 in Harvey (Division P1 Practice and Procedure Paragraphs 311.03 onwards).  Mr Potter’s application is that no amendment is necessary as, when one looks at the claim as a whole and in particular the wording in paragraphs 7.4.6, 7.4.7 and 7.4.8, that that wording is wide enough to encompass these allegations in the time period from October 2010 to 2014.

 

3.       In the course of the application Mr Potter clarified that the allegation relating to exclusion from Press Office meetings relates to the period from March 2012 onwards, that is, that the claimant does not seek to allege adverse treatment in that regard from 2010. 

 

4.       I have considered the submissions of both sides, I have looked at the parts of Harvey to which I have been referred and I have considered the two authorities referred to me today namely New Star Asset Management Holdings Ltd v Evershed [2010] EWCA Civ 870 and Abercrombie and Others v Aga Rangemaster Ltd [2013] EWCA Civ 1148.

 

5.       The approach I must adopt is helpfully set out in the Abercrombie Case by Lord Justice Underhill at paragraph 48 which states that I must look at:

 

                    “The extent to which the new pleading is likely to involve substantially different areas of inquiry and the old: the greater the difference between the factual and legal issues raised by the new claim and the old, the less likely it is that it will be permitted.”

 

6.       I must also balance the hardship to either side in deciding whether or not to accede to the claimant’s application. 

 

7.       I agree with Mr Potter that the wording in the claim form is wide enough to encompass the factual allegations as set out at paragraph 1 above.  I therefore have decided that no amendment is necessary to the claim form and there is therefore no time limit issue involved.

 

8.       I appreciate that it may be the case that a sizeable number of meetings are involved and this will require enquiry by the respondent.  However I am also mindful of the fact that, even if the claimant were restricted in her allegations of discrimination, to the period from 2012 onwards, she would be entitled to bring background evidence forward on a Anya basis to seek to persuade the tribunal that the redundancy process that led to her departure from the respondent, was tainted by discrimination.  It is the claimant’s allegation that the redundancy process was discriminatory as it was the culmination of a course of discriminatory action by
Ms Martin dating back to the claimant’s absence because of her alleged disability in 2010.  That is the claimant’s case and she is entitled to pursue it because, in my judgement, that is the thrust of the case she has set out in her claim form.

 

9.       I am also mindful of the fact that a claim form is not a pleading in the High Court and does not need to set out particulars of each and every factual allegation relied upon  to underpin a claim of discrimination.

 

10.     As with any course of conduct case (commonly known as Hendricks-type cases) it is for the respondent to elicit, in the course of the interlocutory process, the claimant’s factual allegations and it is for the claimant to concentrate on her main points in the case so that the case and the hearing are focussed on the main points. 

 

11.     The case can be focussed further by word limits on statements, by a limit on the document bundle, and by the timetabling of questions at the hearing.  All three of these methods must be considered by both sides in order to keep the case within manageable limits if that becomes a problem.  It is too early in the process to say whether that will become a problem as the interlocutory process must be pursued further.

 

12.     The case will now be referred for a further case management if necessary in advance of the hearing which is listed at the end of June.

 

         

 

 

 

Employment Judge:      

 

 

Date and place of hearing:  20 March 2015, Belfast.         

 

 

Date decision recorded in register and issued to parties: