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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Andrews v Short Brothers PLC [2008] NIIT 705_03IT (16 January 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/705_03IT.html Cite as: [2008] NIIT 705_03IT, [2008] NIIT 705_3IT |
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Andrews v Short Brothers PLC [2008] NIIT 705_03IT (16 January 2008)
CASE REF: 705/03
CLAIMANT: Lawrence Andrews
RESPONDENT: Short Brothers PLC
The decision of the tribunal is that:-
(1) The claimant's originating application presented to the tribunal on 3 March 2003 included a claim of unlawful discrimination pursuant to the Disability Discrimination Act 1995.
(2) The respondent is given leave to amend its response, presented to the tribunal on 3 April 2003, within 21 days from the date this decision is registered and issued to the parties; to enable it to set out the details of the grounds upon which the respondent wishes to resist the claimant's said claim of unlawful discrimination pursuant to the Disability Discrimination Act 1995.
Constitution of Tribunal:
Chairman (sitting alone): Mr N Drennan QC
Appearances:
The claimant was represented by Ms M Gavin, Solicitor, of Francis Hanna & Company, Solicitors.
The respondent was represented by Mr E R Murphy, Legal Adviser, of Engineering Employers' Federation.
Reasons
"(1) Whether the claimant's application to the tribunal is sufficient on the face of it to contain an allegation of disability.
(2) If not, whether the application can be amended to include an allegation of unlawful disability discrimination on the basis that the claimant alleges that he was a disabled person suffering from hypertension and that he was dismissed for a reason connected to his disability.
There was no dispute between the parties that, as stated in the application, the claimant was employed by the respondent from 2 October 1979 to 6 December 2002, when his employment was terminated by the respondent.
" …
11. Please say which type of complaint(s) you wish the tribunal to decide: unfair selection for redundancy.
12. When did the matter of which you are complaining happen: 6/12/2002.
When did you first know about this matter? 11/11/02
13. It was unfair system that I was selected for redundancy under.
I would like to challenge at tribunal the categories in which the company humiliated me with their points towards certain attributes these being productivity, quality of workmanship, attitude, + ability to work unsupervised.
Productivity:- I inspected all that was ready whether I was working on d/shift or n/shift. I used all my time working hard, yet I was awarded 210 out of 300 points.
Quality of workmanship:- I thought that it was the insp dept's task to uphold the standards and specifications on all jobs as laid out by design and the customer – a prerequisite of the job which I upheld.
Can't understand why I was awarded 240 out of 300 points.
Attitude:- yet again I was marked low, even though I never had a verbal or written warning. I always tried to show my help and co-operation in fact, I was flexible in my job by helping others.
Ability to work unsupervised:- Surely the fact that I have worked on the n/shift mostly over the past 12 years shows that I don't need to be supervised.
[Tribunal's emphasis] The assessment was for the period Oct 2001 to Sept 2002 of which I was ill from Nov 29 2001 to June 10 2002 with hypertension. I feel discriminated against as the criteria used to assess others was not used in my case.
ie 12 mths
After 25 years service I feel betrayed by the firm, because of my illness they have decided to take this opportunity to make me redundant by giving me a low score assessment.
… ."
"1. The applicant was not unfairly dismissed, but dismissed by reason of redundancy."
The application was originally brought by the claimant against Shorts Bombardier; but, by order dated 9 May 2003, the tribunal, at its own initiative, made an order amending the title of the respondent to that set out above, in light of the terms of the response of the respondent and the title of the respondent set out therein.
"4. Give full particulars of each and every respect it is alleged that the criteria used to assess others discriminated against the applicant.
5. Give full particulars of the grounds which it is alleged that the company betrayed the applicant because of his illness by selecting him for redundancy."
Unfortunately, in light of the issues which are now required to be determined by this tribunal, the claimant's representative, as named in the application, Mr Pollock, nor the claimant himself, replied to the said Notice; nor did the respondent's representative pursue the failure of Mr Pollock or the claimant to reply to the said Notice nor did it make any application to obtain an Order from the tribunal compelling the claimant to reply to the said Notice. Although Mr Pollock was named on the face of the application as the claimant's representative, in the absence of any evidence before me, I am not in a position to conclude whether Mr Pollock had agreed to and/or had acted at any material time as the claimant's representative in relation to these proceedings.
" …
I refer to the above matter.
I have taken further instructions from my client who contends that he was unfairly selected for redundancy due to his illness.
In my view this case should be classified as a disability discrimination case and I propose to make application to the tribunal to classify it accordingly.
I would refer you to the IT1 and I have no doubt that you will agree that the IT1 is drafted in a manner where it is clear that it was the intention of the claimant to include the disability discrimination case.
Please confirm by return that you will consent to this application.
… ".
By letter dated 19 January 2007, the respondent's representative made it clear to the claimant's representative that the contentions/applications referred to in the letter dated 10 January 2007 would be resisted by the respondent. In particular, in light of the correspondence, it was clear that the respondent's representative did not accept that the application included any claim of disability discrimination; but also, if it did not, as it contended, it would not consent to any application to amend the application to include any such claim of disability discrimination. Clearly, in my view, having regard to the terms of the overriding objective, these issues required to be determined by the tribunal, before the application could be properly determined at a substantive hearing. In my opinion, a pre-hearing review, in the circumstances, was, under the Rules of Procedure, the appropriate manner for such issues to be determined. Unfortunately, no formal application was made to the tribunal, following the said correspondence to allow for these issues to be determined; and it was not until the Case Management Discussion, held on 6 June 2007, that the President of the Industrial Tribunals and Fair Employment Tribunal, after hearing submissions by both representatives, made an Order directing the hearing of this pre-hearing review on 2 October 2007, to deal with the matters raised in the above correspondence. Following further correspondence between the representatives, the issues to be determined by the tribunal at the said pre-hearing review were agreed by them, as set out at Paragraph 1 of this decision.
3.7 I, firstly, considered the issue, namely:-
"(1) Whether the claimant's application to the tribunal is sufficient on the face of it to contain an allegation of disability."
There was no dispute between the parties that the reference, as set out above, to the allegation of disability was a reference to a claim of unlawful discrimination pursuant to the terms of the Disability Discrimination Act 1995. In determining this issue, it was necessary to consider, in particular, the precise wording which has been used in the application, and the extracts from the application referred to above.
Under Rule 1(1) of the Rules of Procedure contained in Schedule 1 of the 1996 Regulations it was provided:-
"Where proceedings are brought by an applicant, they should be instituted by the applicant presenting to the Secretary an originating application which shall be in writing and shall set out:-
(a) name and address of the applicant … ;
(b) the name and address of person or persons against whom relief is sought; and
(c) the grounds, with particulars thereof, on which relief is sought."
As Harvey on Industrial Relations and Employment Law (Paragraph T-303) makes clear, referring to the said Rules which were in force prior to the commencement of the new Rules in April 2005, as set out above:-
" … the only ground under the previous Rules for not accepting a claim was its apparent failure to seek relief which the tribunal had power to give. … The EAT took a relaxed view of deficiencies in the originating application and held that the only mandatory requirement was that the claim should be in writing, the other requirements – setting out the names and addresses of the parties and the grounds of particulars of the claim were directory only. Any defects could therefore generally be remedied by the giving of further particulars during the course of proceedings."
(See Burns International Security Services (UK) Limited v Butt [1983] ICR 547, Dodd v British Telecom PLC [1988] IRLR 16, Smith v Automobile Pty Limited [1973] ICR 306, Cocking v Sandhurst (Stationers) Limited [1974] ICR 650, Gosport Working Men's and Trade Union Club v Taylor [1978] ICR 321) ….…"
" … accordingly, in determining whether an application to an employment tribunal contains 'details of the claim' as required under Rule 1(4), 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's Secretary or a Chairman interpretating '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."
Thus, it can be seen that the test to be applied by the tribunals in determining whether a claim has been made in a particular application/claim form is not radically different under either the old Rules of Procedure, which were applicable to this claim in 2003, or the new 2005 Rules of Procedure. The legal authorities, to which I have referred above, although not strictly binding on this tribunal are of persuasive authority and have been generally applied in this jurisdiction.
Chairman:
Date and place of hearing: 2 October 2007, Belfast
Date decision recorded in register and issued to parties:
