THE INDUSTRIAL TRIBUNALS

CASE REF:	1102/10

CLAIMANT:			Jillian Gillespie

RESPONDENTS:	1.	PriceWaterhouse Coopers
2.	Stuart McKeown
3.	Karen Begg
4.	The Northern Ireland Transport Holding Company

DECISION ON A PRE-HEARING REVIEW

The Decision of the tribunal is that the claimant is entitled to amend her claim to include a claim for loss of chance to be appointed to the post of Head of Governance and Legal Services with the fourth respondent.

Constitution of Tribunal:
Chairman (sitting alone):		Mrs Ó Murray	

Appearances:
The claimant appeared in person accompanied by her husband.

The first, second and third respondents were represented by Mr McEvoy, 
Barrister-at-Law instructed by Ms McCourt of PriceWaterhouse Coopers LLP.

The fourth respondent was represented by Mr P Ferity, Barrister-at-Law instructed by Ms O’Neill of Carson McDowell Solicitors.

Reasons

1.	The issue before the tribunal was whether or not the claim of age discrimination should be amended to include a claim of failure to appoint the claimant to the position of Head of Governance and Legal Services with the fourth respondent.  At the hearing Mrs Gillespie changed her application to an application that the claim be amended, if necessary, to include a claim of loss of chance to be appointed to the position of Head of Governance and Legal Services with the fourth respondent.  The claimant’s case is that her qualifications and experience were comparable to those held by the successful candidate number 25 in that they were on the same level as that candidate.

2.	At the outset of the hearing Mr McEvoy and Mr Ferrity agreed that the respondents did not allege that the proposed amendment added or substituted a whole new claim or cause of action which was not connected to the original claim at all.  This is the third type of amendment referred to in Harvey Division P Paragraph 311.03.  Both Counsel further agreed that the proposed amendment fell within the first or second types of amendment application outlined  in Harvey and both Counsel agreed that neither type of amendment involved time limit issues.  In view of this it was agreed that the application proceed by way of submissions alone.

3.	The cases referred to were the Selkent decision, as outlined in Harvey, and the Ali decision in relation to the test to be applied, as outlined in Harvey at division P which deals with amendments.

4.	In Harvey the first type of amendment application relates to amendments which are merely designed to alter the basis of an existing claim but without purporting to raise a new distinct head of complaint.  The second type of amendment is one which adds or substitutes a new cause of action but one which is linked to or arises out of the same facts as the original claim.

5.	It is clear from the claim form, which was presented on 12 April 2010, that the claimant was unhappy that she applied for a post and did not progress in the competition.  

6.	The claimant’s submission was that she wishes to clarify and define her claim and that the application does not relate to a fresh claim but is a direct consequence of the shortlisting process which she said was defective.

7.	The claimant submitted that she could not have said whether or not she would have accepted the post as she did not know the details of the terms and conditions and the salary and indeed the claimant did not know whether or not anyone had been appointed until 6 September 2010 when the respondents revealed the number of the successful candidate.  At the time the claim form was lodged, the claimant was unaware if any appointment had been made.

8.	In deciding whether or not to exercise my discretion to allow an amendment I must balance the relative injustice and hardship to each party.  I must also look at whether the proposed amendment is a minor or a substantial one and I must consider the timing and manner of the application.

9.	Given that the claimant only became aware that someone had been appointed to the post on 6 September 2010, I am satisfied that the claimant should be permitted to make the case that her claim includes a claim for loss of the chance to be appointed when compared with the successful candidate.  I have considered the extent to which any such amendment would extend the issues and the evidence required at the hearing.  The respondents indicated that the number of witnesses would not increase if the amendment were allowed but that the evidence to be given would change and expand.  

10.	As the claimant’s claim clearly included a claim for loss of chance related to a failure to shortlist, I have decided that the hardship occasioned to the respondents in having to meet the extended claim is not as great as that which would be occasioned to the claimant if she were barred from pursuing such a claim.  

11.	The respondents have been on notice since the CMD of 26 August 2010 of the claimant’s position that the claim included a claim for failure to be appointed to the post.  I therefore do not accept that the claimant has delayed in defining or clarifying this aspect of the age discrimination claim particularly as the claimant only became aware of the fact that someone was appointed and the candidate number of that appointee on 6 September 2010.

12.	The claimant’s claim is for age discrimination in relation to the respondents’ recruitment process.  I therefore find that the nature of the original claim remains intact but the claimant seeks in the amendment application to add to the grounds on which that claim is based.  

13.	The respondents now have the opportunity to seek to identify by way of interlocutory notices the precise nature of the claimant’s claim that she had comparable qualifications and experience compared with the successful candidate which meant that she was on a level with that candidate and therefore lost the chance to compete with the candidate and be appointed.  The interlocutory process should narrow the issues in that regard and this will ensure that the evidence at hearing will be focussed.

Chairman:

Date and place of hearing:  19 October 2010		

Date decision issued to parties: