THE INDUSTRIAL TRIBUNALS

CASE REFS:   7299/09 & Others

CLAIMANTS:		Miller & Others

RESPONDENTS:		1.	Internal Door Systems
				2.	Internal Door Systems
				3.	Colin Glendenning
				4.	Michael Cunningham

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the tribunal allows the amendment to the first claimant’s claim to substitute a new paragraph 7 and joins Andor Design Limited as a fifth respondent to this claim.

Constitution of Tribunal:
Chairman (sitting alone):		Mr B Greene

Appearances:
The first claimant was represented by Ms R Best, Barrister-at-Law, instructed by Copeland McCaffrey, Solicitors.
The remaining claimants were neither represented nor in attendance.
The first, second and third respondents were neither represented nor in attendance.
The fourth respondent appeared in person.

Sources of evidence

1.	This matter was dealt with by way of submission.  The tribunal had regard to the first claimant’s claim form, Case Management Discussion Records of Proceedings of 24 February 2010, 24 March 2010 and 14 April 2010, and a bundle of documents prepared by the first claimant of some 45 pages.  The tribunal also had regard to the oral submissions on behalf of the first claimant.

The claim and defence

2.	The first claimant claims for unfair dismissal, a redundancy payment, unpaid wages and holiday pay.  None of the respondents have put in a response.  

3.	The first claimant’s solicitor applied by letter of 24 May 2010 to amend Paragraph 7 of the first claimant’s claim form.  Accordingly, a pre-hearing review was arranged for 19 August 2010.

The issues

4.	The following are the issues to be determined by the tribunal:-

(i)	Whether the claimant is entitled to amend his claim form by the addition to Paragraph 7 of the proposed amendment.

(ii)	If the amendment is successful should Andor Systems Limited be joined as a respondent to these proceedings.

Findings of fact

5.	The following facts found by the tribunal emerge from the documents of record or appear to the tribunal not to be in dispute:-

(1)	The claimant was an unrepresented litigant prior to 24 February 2010.  In his claim form, presented on 21 October 2009, the first claimant claimed for unfair dismissal, a redundancy payment, unpaid wages and holiday pay.  The first claimant is one of five claimants making similar, but not identical, claims against the four respondents.  

(2)	In the body of the claim form the first claimant recorded his belief that there had been a transfer of undertaking to a new company which had taken over the business of his former employer.  

(3)	The claimant had been employed by the third and fourth respondents trading as the first respondent.

(4)	At a Case Management Discussion on 24 February 2010 to plan the way forward for this multiple claim, the first claimant reiterated his belief that there had been a transfer of undertaking to a new company.  He was advised that he should take advice and decide whether he was proceeding with such a claim as it might involve joining another party to the proceedings.

(5)	At a further Case Management Discussion on 24 March 2010 the matter of a transfer of undertaking and its implication had not been addressed and a further Case Management Discussion was scheduled for 14 April 2010.  

(6)	On 14 April 2010, at the Case Management Discussion, the first claimant was told he would need to have the name of the new company and have to apply to join it as a respondent to these proceedings if he was pursuing the claim that there had been a transfer of undertaking.

(7)	By letter of 24 May 2010, Messrs Copeland & McCaffrey, Solicitors, came on record for the first claimant.  They sought to amend Paragraph 7 of the claimant’s claim form and to join another company, the alleged transferee as a respondent.  Accordingly, a   pre-hearing review was arranged for 19 August 2010 to consider these two issues.  

(8)	At the pre-hearing review the first claimant’s counsel argued that the amendment proposed did not add a new head of claim or add a new claim based on pleaded facts, but rather is designed to alter the basis of an existing claim.  She argued that did not cause time-limits to be a matter for consideration by the tribunal.  

(9)	The first claimant’s counsel also advised the tribunal that the name of the alleged transferee is Andor Design Limited and not Andor Systems Limited and accordingly the second issue was amended to reflect this.  

The law

6(1)	The tribunal has discretion to make an order giving the claimant leave to amend his claim under Rule 10(2)(q) of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

  (2)	Tribunals are required to exercise their discretion in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial decisions (Selkent Bus Company Ltd  v  Moore [1996] ICR 836 at 842 H).

  (3)	The principles to be applied by a tribunal when considering whether to permit an amendment or not are to be found in Selkent Bus Company Ltd  v  Moore and are discussed in Harvey on Industrial Relations sub-section T [311] to [313].  There are three categories of amendment applications:-

		(a)	the first category covers amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint.  This category will not be subject to scrutiny in respect of time-limits but will be subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.

(b)	The second category covers amendments that add or substitute a new cause of action but one that is linked to, or arises out of the same facts already pleaded in the original claim.  This category of amendment is usually described as putting a new ‘label’ on facts already pleaded.  This type of amendment will not be subject to scrutiny in respect of time-limits provided that
          the claim which is sought to be amended has been presented in time, but will be subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.

		(c)	The third category covers amendments that seek to add or substitute a wholly new claim or cause of action or a new positive case involving consideration of facts that have not been previously pleaded.  To determine whether the amendment amounts to a wholly new claim as opposed to a change of label it will be necessary as a matter of construction to examine the case as set out in the original application to see if it provides the necessary and ‘causative link’ with the proposed amendment.  Amendment applications coming within the third category are subject to scrutiny in respect of time-limits as if they were entirely new claims that have been brought outside the        time-limit.  The tribunal should therefore only exercise its discretion to grant an application to amend under this category if it considers it just and equitable to do so.  

Application of law and findings of fact

7(1)	The first claimant’s claim contains claims for unfair dismissal, a redundancy payment, unpaid wages and for untaken holiday leave.  The claims are set out in the claim form and, in particular, Paragraph 7 of the claim form.

  (2)	The proposed amended Paragraph 7 does not add any further heads of claim.  

  (3)	The proposed amendment does not add any new claims arising from facts already pleaded.  

  (4)	The proposed amendment gives a few additional factual matters in relation to the claims already pleaded.  In addition, it slightly re-words Paragraph 7.  The proposed amendment falls under the first type of amendment set out in the Selkent Bus Company case.  It is not subject to scrutiny from the point of view of time-limits, but is subject to scrutiny in regard to hardship and delay in making the application to amend.  

  (5)	The tribunal concludes that it would be just and equitable to permit this amendment.  In so concluding, the tribunal had regard to following matters:-

	(a)	Additional facts pleaded related to claims already made and also include expressions of the claims already made in slightly different wording.

	(b)	That while there was a lack of clarity about the proposed new respondent/transferee this is a matter about which the first claimant was exercised from the presentation of his claim form at least.  Some time was taken in taking legal advice and obtaining the name of the transferee company.

	(c)	There is little or no prejudice to the proposed respondent as it can still defend the claim.

	(d)	There would be considerable prejudice to the first claimant if a tribunal found that there was in fact a transfer and the transferee was not a party to these proceedings.  

8. 	Accordingly the tribunal finds that the first preliminary issue is answered in the affirmative and leave is given to amend Paragraph 7 of the first claimant’s claim form by the substitution of the new Paragraph 7 which is attached to this decision.

9.	Given that the amendment is permitted, which claims a transfer of undertaking to a new company, the transferee, leave is also given to join Andor Design Limited as a respondent to these proceedings.

10.	Accordingly, the second preliminary issue is also answered in the affirmative and Andor Design Limited is joined as a respondent to the first claimant’s claim.  

11.	The newly-joined respondent will be given 28 days from the date of this decision to submit its response.  

Chairman:

Date and place of hearing:	19 August 2010, Belfast

Date decision recorded in register and issued to parties:

Paragraph 7 
On the 19th August 2009 I was told that Michael Cunningham and Colin Glendenning that a new investor was taking over the business for which I  worked, Internal Doors Systems. On the Wednesday of that week the 19th August we were told that the bank had closed down the business and that we would have no work for the next two weeks. We were asked if we wanted to work for the new company and I said I would. Most other employees were asked to attend for interviews but I was not. I received a letter from my employers confirming that I was owed unpaid wages and holiday pay and I attach a copy of that letter to this claim. 
I am owed a total of £3,971.22 plus unpaid holiday pay. I was employed by Internal 
Doors Systems from June 2007 until August 2009.I was told that a new investor was taking over the company and has since been told that the business is now trading under Andor Designs Limited. Some of the original staff is still working for Andor Designs Limited, but I was not offered the opportunity to transfer to that company.
The day after I was verbally informed that the bank was closing Internal Doors Systems I was offered a few days work under the new investor by Colin Glendenning.  I accepted, I was paid for those days, two days in Dublin and three days in Craigavon. I do not still have the cheque to confirm who the employer was.