THE INDUSTRIAL TRIBUNALS

CASE REF:  274/11

CLAIMANT:			William Alwyn Wilson

RESPONDENT:		Resource (NI) Ltd

DECISION ON PRE HEARING REVIEW
The decision of the tribunal is that the claimant is granted leave to amend his claim form to include a complaint of disability discrimination by way of victimisation.

Constitution of Tribunal:

President (Sitting alone):	Miss E McBride

Appearances:

The claimant was represented by Mr J Thompson.

The respondent was represented by Ms K Moore, Solicitor, of EEF

REASONS

1.	At a Case Management Discussion on 21 March 2011 the claimant made an application to amend the above claim which at present contains a complaint of unfair dismissal to include a complaint of disability discrimination by way of victimisation on the ground that the respondent made allegations of:-

(i)	bullying and harassment against the claimant; and

(ii)	distribution of personal information to a third party;

which they did not follow up during the disciplinary process and did not do so because the claimant had previously brought a claim of disability discrimination against the respondent.

2.	The main issues for the tribunal to determine were:-

(i)	whether the complaint of disability discrimination by way of victimisation was linked to or arose out of the same facts as the unfair dismissal complaint or whether it was a wholly new complaint which was not connected to the original complaint at all; and

(ii)	whether the statutory grievance procedure applies to the victimisation complaint in the circumstances of this case. 

3.	The tribunal heard evidence from the claimant and from his representative.  No evidence was adduced on behalf of the respondent although the tribunal made it clear that, if the respondent wished to adduce evidence, it would be given the opportunity to do so.  

4.	In her closing submissions, Ms Moore accepted that in light of the decision of the Employment Appeal Tribunal in Otaiku –v- Rotherham Primary Care NHS Trust Appeal Number UK EAT/0253/07/JOJ, the statutory grievance procedure did not apply to the victimisation complaint in the circumstances of this case.  Ms Moore also accepted that when the complaint form was considered with the additional information, the victimisation complaint was either linked to or arose out of the same facts as the unfair dismissal complaint.  

5.	The remaining issues, therefore, for the tribunal to consider were the hardship or prejudice which would be caused to the claimant by refusing the application and to the respondent by granting the application, together with the claimant’s delay in making the application.

Hardship

6.	Having considered the claimant’s evidence, the tribunal was satisfied that the claimant would suffer hardship if the application to amend was not granted as he would not be able to pursue his complaint of disability discrimination by way of victimisation in relation to the disciplinary process.  The tribunal was not satisfied that the respondent has established that it would suffer any hardship if the application was granted.

Delay

7.	The claimant’s claim form (containing his complaint of unfair dismissal) was received in the Tribunal Office on 12 January 2011 and on 24 January 2011 the claimant and his representative were notified that the claim had been accepted.  Having considered the evidence of the claimant and Mr Thompson, the tribunal was satisfied that there were inconsistencies in their evidence.  However, the tribunal considered that this was most likely to have been due to their difficulty recollecting dates and discussions rather than an attempt to mislead the tribunal.  The tribunal was satisfied that what was most likely to have happened was that Mr Thompson met with the claimant several days after receiving the tribunal’s letter dated 24 January 2011.  At that stage Mr Thompson had not had the opportunity to consider the papers in the claimant’s seven sets of claims to the tribunal.  The claimant provided Mr Thompson with all those papers at that meeting and it was only shortly before the Case Management Discussion which took place on 21 March 2011 that Mr Thompson advised the claimant with regard to an amendment application to include a victimisation complaint.  That application was then made at the Case Management Discussion which took place on 21 March 2011 without any prior notice of the application having been given to the respondent or to the tribunal.  The tribunal was satisfied that the delay is a relevant factor in this case.  However, in light of the fact that Mr Thompson is a lay representative with very little employment law or tribunal experience and that he had a large amount of information to absorb, the tribunal attached very little weight to the delay in the particular circumstances of this case.

8.	The tribunal therefore granted the claimant’s application to amend the above claim to include a complaint of disability discrimination by way of victimisation as set out at paragraph 1 above.   

______________________________________
E McBride CBE
President

Date and place of Hearing:  14 April 2011, Belfast 

Date decision recorded in register and issued to parties: