THE INDUSTRIAL TRIBUNALS

CASE REF:	861/17

CLAIMANT:			Charlene Ritchie

RESPONDENTS:		1. 	Brian Stelfox
				2. 	Kerry Connolly

DECISION ON A PRE-HEARING REVIEW

1.	An industrial tribunal does not have jurisdiction to entertain this claimant’s holiday pay claim because it was not presented in time.

2.	An industrial tribunal does not have jurisdiction to entertain this claimant’s notice pay claim because it was not presented in time.

3.	This claimant’s application for leave to amend her claim form, so as to include a claim for unfair dismissal, is refused.

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge Buggy

Appearances:

The claimant was represented by Mr O Friel, Barrister-at-Law.

Mr Stelfox was not present or represented.

Ms Connolly was represented by Mr R Cushley, Barrister-at-Law.

REASONS

1.	Charlene Ritchie is the claimant in pending industrial tribunal proceedings (CRN 861/17).  Georgina Mallon is the claimant in industrial tribunal proceedings (CRN 676/17) which are also pending.

2.	There are two respondents to each of those two cases.  The respondents are Brian Stelfox (“Mr Stelfox”) and Ms Kerry Connolly (“Ms Connolly”).  

3.	At all times which are material for present purposes, Mr Stelfox was a practising solicitor.

4.	At all times which are relevant for present purposes, Ms Connolly is, and has been, a practising solicitor.  

5.	For several years, until the end of October 2016, Mr Stelfox was the sole principal in a solicitor’s practice which he ran from two offices.  One of those offices was located in Derry/Londonderry.  The other office was at 14 Main Street Limavady.  

6.	Ms Connolly was employed by Mr Stelfox, as an assistant solicitor in his practice, for a lengthy period, until the middle of 2016, when she left Mr Stelfox’s practice and established her own practice.  Until November 2016, Ms Connolly operated her practice from a single office in Derry/Londonderry (which was located at an address which was different from the Derry/Londonderry address from which Mr Stelfox was practising).  

7.	With effect from 31 October 2016, Mr Stelfox stopped operating his practice.  

8.	With effect from that date, he dismissed, or purported to dismiss, Ms Charlene Ritchie and Ms Mallon and all the (other) employees who were employed by him at the end of October 2016.  

9.	In both the Charlene Ritchie and the Mallon cases, the claimants and Ms Connolly  agree that, by 31 October 2016, a “relevant transfer”, within the meaning of TUPER, (whereby a relevant entity transferred from Mr Stelfox to Ms Connolly), had already begun.

10.	In the present context, “TUPER” means the Transfer of Undertakings (Protection of Employment) Regulations 2006.  

11.	In the Mallon case, the claimant and Ms Connolly agreed that, on 31 October 2016, Ms Mallon was assigned to the transferring entity (in the sense in which the concept of an assignment is used for the purposes of TUPER).  

12.	In the Charlene Ritchie case, the claimant and Ms Connolly agree that, if Ms Ritchie was still employed by Mr Stelfox on 31 October 2016, she was at that time assigned to the relevant transferred entity.  

13.	As already noted above, in both the Charlene Ritchie case and the Mallon case, the claimant and Ms Connolly are now agreed that there was a relevant transfer, from Stelfox to Connolly, in the sense in which the term “relevant transfer” is used at paragraph 9 above.  However, even if Ms Connolly had not agreed to that proposition, it would be obvious that that proposition is correct, mainly because of the matters which are referred to in the next paragraph below.  

14.	From November 2016 onwards, Ms Connolly began to practise from Mr Stelfox’s old offices at 14 Main Street Limavady.  At that time, Mr Stelfox himself began to work for Ms Connolly, as an assistant solicitor.  From that time onwards, most of the people who had been working for Mr Stelfox in October 2016 began to work for Ms Connolly.  

15.	Charlene Ritchie and Ms Mallon, and a number of other ex-employees of Mr Stelfox, made applications to the Redundancy Payments Service (in its role as the statutory guarantor in respect of certain employment debts) in respect of redundancy pay.  In every instance, that application was refused.  In each instance, the reason for refusal was that the RPS expected the relevant applicant to obtain a redundancy pay award, in the industrial tribunals, against Mr Stelfox, as a precursor to any successful RPS application. 

The course of the proceedings 

16.	By 24 February 2017, there were nine pending industrial tribunal cases, in which Mr Stelfox was the sole respondent, which had been brought by ex-employees of Mr Stelfox, including Charlene Ritchie and Ms Mallon.  

17.	On that date, I held separate Case Management Discussion (“CMDs”) in respect of several of those cases.  At that point, Mr Stelfox had not presented any response in any of the relevant cases.  In the record of proceedings which I issued in respect of the various relevant CMDs, I urged him to present a response, in each of the relevant cases.  He subsequently did so.  

18.	As a result of the information which I received during various 24 February CMDs, it became clear to me that the following issues were significant, in the context of the relevant cases:

(1)	In the circumstances of those cases, had there been a relevant transfer, within the meaning of TUPER?

(2)	If so, was one, or several, or were all, of the relevant claimants assigned to the transferred entity on the date in October 2016 on which Mr Stelfox purported to dismiss (or did dismiss) them?

19.	In my record of proceedings, in respect of the 24 February CMD, I drew attention to the issues which have been listed in the last preceding paragraph above.  

20.	In the same record, I stated that, if the answer to both of the relevant questions (the questions which are listed at paragraph 18 above) is “yes”, there would be important implications in relation to Ms Connolly’s responsibilities as an employer– transferee.  I also stated that, for that reason, I thought that it was appropriate that Ms Connolly should have the opportunity to participate in the relevant proceedings.  As a first step, I joined her as a notice party in one of the relevant cases.

21.	By the beginning of April 2017, Mr Gareth McCay had become the solicitor in respect of most of the relevant claimants, including Charlene Ritchie and Ms Mallon.

22.	Another CMD was held, in respect of all of the relevant cases against Mr Stelfox, on 10 April 2017.

23.	The Mallon claim form had been received by the Office of the Industrial Tribunals on 19 January 2017.  Prior to the making of the relevant amendment application (see below), the only claims which Ms Mallon was making were claims in respect of holiday pay, notice pay and redundancy pay.  Initially, Ms Mallon was making claims only against Mr Stelfox.  Ms Connolly was added as a respondent to the Mallon proceedings in May 2017. 

24.	In the Charlene Ritchie proceedings, prior to the relevant amendment application (see below), Ms Ritchie was making a claim only in respect of holiday pay, notice pay and redundancy pay.   Ms Connolly was added as a respondent to the Charlene Ritchie proceedings in May 2017. 

25.	In early May 2017, Mr McCay applied for leave to amend the Mallon claim form.  Ultimately, that amendment-leave application sought leave to amend the claim form so as to include claims in respect of unnotified deductions, claims in respect of breaches of regulation 15 of TUPER (“a TUPE consultation claim”) a claim in respect of unfair dismissal, and a claim in respect of unlawful deduction of wages

26.	In early May, Mr McCay also applied for leave to amend the Charlene Ritchie claim form so as to include a claim in respect of unnotified deductions, a TUPE consultation claim and a claim for unfair dismissal.  

27.	In both the Charlene Ritchie and the Mallon cases, it was agreed between the claimants and Ms Connolly that the resolution of two of the claimant’s applications (her applications for leave to amend her claim form so as to include a claim for unnotified deductions and a consultation claim) could usefully be left for resolution at a later date.  

28.	However, in each of those cases, by arrangement, a Pre-Hearing Review (“PHR”) was held in August 2017.  In each of those cases, the issues which were listed for determination during the course of that PHR were as follows.  

29.	In the Charlene Ritchie case, the PHR issues were as follows:

(1)	Is an industrial tribunal deprived of jurisdiction to entertain Ms Ritchie’s holiday pay claim because it is out of time? 

(2)	Is an industrial tribunal deprived of jurisdiction to entertain Ms Ritchie’s notice pay claim because it is out of time?

(3)	Should Ms Ritchie be granted leave to amend her claim form, so as to include a claim for unfair dismissal? 

30.	In the Mallon case, the issues which were to be determined during the course of the August PHR were as follows:

(1)	Should Ms Mallon be granted leave to amend her claims form so as to include a claim in respect of unlawful deduction of wages?

(2)	Should Ms Mallon be granted leave to amend her claim forms so as to include a claim in respect of unfair dismissal?

31.	In each of the two cases (the Charlene Ritchie and Mallon cases) the August PHR was conducted by me.  In respect of both of the two cases, there was a single hearing.  Mr Stelfox was not present or represented during the course of that hearing.  It was agreed between the claimant’s representative and Ms Connolly’s representative that evidence in the Charlene Ritchie case should be regarded as being evidence in the Mallon case also, and that evidence in the Mallon case should be regarded as evidence in the Charlene Ritchie case also.  The factual context of the Charlene Ritchie PHR is very similar to the factual context of the issues in the Mallon PHR.  Many of the legal issues which are relevant in the context of the Charlene Ritchie PHR are also relevant in the context of the Mallon PHR.  Many of the legal issues in the Mallon PHR are also relevant in the context of the Charlene Ritchie PHR.  

32.	I have issued separate Decisions in respect of the Charlene Ritchie PHR and in respect of the Mallon PHR respectively.  However, against the background indicated in the last paragraph above, the Reasons in respect of the Charlene Ritchie PHR decisions are the same as the Reasons for the Mallon PHR decisions. 

33.	I was overly optimistic about my original proposed timescale in respect of the finalisation of decisions in respect of the two PHRs.  On 12 December 2017, on my instructions, the Office of the Industrial Tribunals wrote to the representatives of Ms Ritchie, and to Ms Connolly, to inform them that I was minded to decide the Charlene Ritchie and Mallon PHR issues in the ways in which I have ultimately decided those issues.  In the same letter, those recipients were informed of the main reasons for those contemplated determinations.  

34.	In the same letter, the recipients were informed that the PHR hearing in the Charlene Ritchie and Mallon cases would be resumed on 8 January 2018, but only for the purpose of facilitating the delivery of oral decisions, which would be accompanied by the provision of oral reasons for those decisions.  

35.	In the same letter, the recipients were informed that the hearing could be resumed (for the purpose of facilitating the provision of oral decisions and of oral reasons) at some date much earlier than 8 January, if any, or several, or all of the relevant parties would prefer that.  Nobody asked for the hearing to be reconvened at any date earlier than 8 January.  

36.	On 8 January, in each case, I announced my decision on the PHR issues.  At the same time, I provided oral reasons in respect of those decisions.  

37.	On behalf of Ms Ritchie, Mr Friel asked for the provision of written reasons.  In response to that request, I told Mr Friel that I would provide written reasons both in respect of the Charlene Ritchie and in respect of the Mallon PHRs.  These are those Reasons.

The relevant time-limits

38.	In the present context, a reference to “the relevant time-limits” is a reference to all of the time-limits which are referred to at paragraphs 39-43 below.  

39.	The time-limits in respect of Charlene Ritchie’s holiday pay claim are to be found in Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 [1994 No. 308] (“the 1994 Order”), and in regulation 43 of the Working Time Regulations (Northern Ireland) 2016 (“WTR”).  

40.	In respect of Ms Ritchie’s notice pay claim, the relevant time-limit provisions are also contained at Article 7 of the 1994 Order.  

41.	In relation to Ms Ritchie’s proposed unfair dismissal claim, and in relation to Ms Mallon’s proposed unfair dismissal claim, the relevant time-limit provisions are contained in Article 145 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”).

42.	In relation to Ms Mallon’s proposed wages claim, the relevant time-limit provisions are to be found at Article 55 of the ERO.  

43.	In the context of the issues which were determined in the Charlene Ritchie and Mallon PHRs, Article 7 of the 1994 Order, regulation 43 of the WTR, Article 145 of the ERO and Article 55 of the ERO can all be treated, for all practical purposes, as being identical,.  

44.	In relation to unfair dismissal, the effects of the Article 145 provisions can be summarised as follows:

(1)	There is a primary time-limit and a secondary time-limit.

(2)		The secondary time-limit is available only if the relevant judicial authority (a tribunal or an employment judge) is satisfied that it was not reasonably practicable for the claim to be presented within the primary time-limit.

(3)	The primary time-limit is a period of three months beginning with the date of the termination employment.  

The concept of “relation back”

45.	In the context of employment tribunal amendment applications, the concept of “relation back” was considered at length in the Employment Appeal Tribunal judgment in Galilee v Commissioner of Police of the Metropolis UKEAT/0207/16 RN.  

46.	That judgment was delivered on 22 November 2017, after the August 2017 hearing of the relevant Charlene Ritchie and Mallon PHRs.  I mention the Galilee judgment only because it provides a useful and detailed discussion of the concept of “relation back”, which is of relevance to the PHR issues both in Charlene Ritchie’s case and in the Mallon case.

47.	Broadly speaking, in the context of employment tribunal claim form amendment applications, the effect of the concept of “relation back” is as follows: If a claimant obtains leave to amend her claim form as to include a particular additional claim (“claim X”) and if she subsequently does amend her claim form so as to include claim X, she is treated as having first made claim X on the date on which her claim form was originally presented.

48.	In both the Charlene Ritchie case and the Mallon case, the relevant PHR issues were decided on the premise that the relation back concept did apply within the context of any application for leave to amend an employment tribunal claim form.  My understanding was that both parties agreed that the concept of relation back did apply.  

49.	Against that background, I have not given fresh consideration to the relation back issue, even in light of the Galilee judgment.  If I had given such fresh consideration, I am sure that I would have concluded that notwithstanding the clarity and erudition of the Galilee judgment, the concept of relation back does indeed apply, in Northern Ireland, in the context of granted leave-amendment applications in the industrial tribunals.

The implications in these two cases, of the relevant time-limit provisions, and of the concept of relation back

50.	Unfortunately, Charlene Ritchie presented her claim form in these proceedings at least three days after the expiry of a three month period beginning with the date of dismissal.  Accordingly:

(1)	An industrial tribunal has no jurisdiction to entertain her current holiday pay claim unless I am satisfied that it was not reasonably practicable for her to present that claim within the relevant primary time-limit.

(2)	An industrial tribunal lacks jurisdiction to entertain her current notice pay claim unless I am satisfied that it was not practicable for Ms Ritchie to present her notice pay claim within the primary time-limit.

(3)	If I were to grant Ms Ritchie leave to amend her claim form so as to include a claim of unfair dismissal, any such claim would be statute-barred, unless a relevant authority (an industrial tribunal or an employment judge) was satisfied that it was not practicable for her to present an unfair dismissal claim to an industrial tribunal within the relevant primary time-limit.

51.	Ms Mallon presented her claim form prior to the expiry of a period of three months beginning with the dismissal.  Accordingly:

(1)	If I were to grant her leave to amend her claim form, so as to include an unfair dismissal claim, any such claim would be deemed to have been brought within the relevant primary time-limit

(2)	If I were to grant her leave to amend her claim form so as to include a wages claim, that claim would be deemed to have been made within the relevant primary time-limit.  

Conclusions on the time-limit issues in each of these two cases

52.	Ms Ritchie told me that she had not initiated holiday pay, notice pay or unfair dismissal claims within the period of three months beginning with the date of the termination of her employment, for two reasons:

(1)	Until I had raised the TUPE issue (in the context of the 24 February 2017 CMD), she had had no knowledge about TUPE rights.  

(2)	Anyway, throughout the relevant three month period, she had no idea of various facts (such as the takeover of Mr Stelfox’s Limavady office, or the employment, from November 2016 onwards, by Ms Connolly, of Mr Stelfox and of most of Mr Stelfox’s former staff) which provided, or which would have provided, the factual basis for making successful claims against Ms Connolly.  

53.	Ms Mallon says that, within the period of three months beginning on the date of her dismissal, she did not make claims for wages or for unfair dismissal, because she did not then know that TUPER had had no knowledge about TUPE rights.

54.	By the late 1970s, Court of Appeal and EAT judgments in Great Britain had clearly established the proposition that ignorance of the right to make a claim for unfair dismissal is usually not reasonable ignorance.  I am sure that, in the circumstances of Northern Ireland in 2016, a lack of knowledge about TUPE rights is now usually not reasonable ignorance.  (Transfer of undertakings law is now sufficiently long established, to generally make ignorance of that aspect of the law unreasonable ignorance).

55.	In each of these two cases, I have assumed, in favour of the relevant claimant, that she was being honest in contending that she did not know about her TUPE rights, at any time within the three month period beginning in November 2016.  However, in each case, I am not satisfied that that ignorance of the law was reasonable ignorance.  Accordingly, in each case, that ignorance of the law does not provide an adequate basis for the proposition that it was not reasonably practicable for the relevant claimant to present her claim within the primary time-limit.  

56.	It is clear law (see, for example, Peterborough Foundation Cambridge NHS Trust v Couchman [2009] ICR 1306, at para 11(3) of the judgment) that ignorance of relevant facts does not make it not reasonably practicable for you to present a claim of unfair dismissal within the relevant primary time-limit, unless your ignorance of those facts is reasonable ignorance.

57.	During the course of her oral testimony in this case, Ms Ritchie told me that, prior to the expiry of the relevant three month primary limitation period, she did not know any of the following:

(1)		Most of the former staff of Mr Stelfox were working for Ms Connolly.

(2)	Mr Stelfox himself was working for Ms Connolly.

(3)	Ms Connolly was operating out of the Limavady building from which Mr Stelfox had run his practice.

For the purpose of determining the PHR issues, I have assumed that all of that testimony was accurate testimony.  

58.	At all material times, Ms Ritchie was living in Limavady.  In all the circumstances of this case, I do not regard Ms Ritchie’s ignorance of all of the facts referred to in paragraphs 57 above as being reasonable ignorance.  Therefore, I am not satisfied that her ignorance of those facts made it not reasonably practicable, within each relevant primary time-limit, for her to present her holiday pay claim, to present her notice pay claim or to present her proposed unfair dismissal claim. 

My overall conclusions

59.	In the Charlene Ritchie case, the effects of the conclusions which are set out at paragraph 50 above are as follows:

(1)	Ms Ritchie’s current holiday pay claim is statute-barred.  

(2)	Ms Ritchie’s current notice pay claim is statute-barred.  

(3)	No useful purpose would be served by granting the claimant leave to amend her claim form so as to include a claim for unfair dismissal, because any such new claim would be statute-barred.  

60.	In the Mallon case, the effects of the conclusions which are set out at paragraph 51 above are as follows:

(1)	If Ms Mallon, at the time when she made the relevant amendment applications, had begun fresh industrial tribunal proceedings, either in relation to wages or in relation to unfair dismissal, those proceedings would have been statute-barred. 

(2)	However, because of the concept of relation back, if I grant Ms Mallon leave to amend her claim form, so as to include wages and unfair dismissal, the effect of those amendments will be to put her in the same position, in relation to the relevant statutory time-limit provisions, as she would have been in if she had included the wages and unfair dismissal claims in her claim form when she originally presented it.

(3)	The implication of sub-paragraph (2) above is that, if I were to grant Ms Mallon leave to amend her claim form, so as to include claims for wages and for unfair dismissal, any such additional claims would be deemed have been brought within the primary statutory time-limit.  

61.	In deciding the amendment issues, both in the Charlene Ritchie case and in the Mallon case, I have applied the legal principles which were set out and referred to at paragraphs 51-68 of my Decision in Buckley v Ilex URC Ltd [CRN 1532/16 & Others, decision issued on 12 May 2017],  at paragraphs 51-68 of that Decision.  In that context, I refer in particular to paragraphs 67 and 68 of the Buckley decision.  

62.	At paragraph 68 of Buckley, I summarised the relevant principles in the following terms:

“(1)	If a proposed additional claim, in current proceedings, would be in time if it were to be brought by way of a fresh claim, the general rule is that that application for amendment will be allowed …

(2)	If the proposed new claim would be out of time if it were to be brought in the course of fresh proceedings, the application for amendment will, as a general rule, be refused.

(3)	An exception to that general rule should be made if, in the particular circumstances of a particular case, there is good reason for making an exception.  (In this connection, see, in particular, paragraph 50 of Abercrombie)”.

63.	In my view, in the particular circumstances of the Mallon case, there is good reason to make such an exception, both in respect of the wages claim and in respect of the unfair dismissal claim.

64.	The reason for making that exception is that, throughout a period beginning on 1 November 2016 and ending in March 2017, Ms Connolly, although a practising solicitor, was not acknowledging that Ms Mallon had TUPE rights against herself, in Ms Connolly’s role as the “relevant transfer” transferee.  

65.	Because of the circumstances outlined at paragraph 64 above, I would have thought it appropriate to make a similar exception, in relation to Ms Ritchie’s unfair dismissal amendment - leave application, if any useful purpose would have been served by doing so.  However, I am sure that no useful purpose would have been served by doing so because any such unfair dismissal claim on the part of Charlene Ritchie would be statute-barred.  

66.	During the course of the PHR, it was argued, both in respect of the Charlene Ritchie leave application and in respect of the Mallon leave applications, that the relevant amendment applications were not initiated sufficiently speedily in the wake of the 
24 February 2017 CMD.  It was suggested that that alleged lack of speed, in initiating the amendment-leave applications, was a factor which I should take into account in each of the relevant leave-amendment applications.  I rejected that proposition because I am sure that the relevant amendment-leave applications were indeed initiated within a reasonable period after the 24 February 2017 CMD.  

67.	It was also suggested on behalf of Ms Connolly that the leave applications should be rejected in the interests of legal certainty (so that, after a certain period, respondents should be able to rely on the fact that certain claims have not been brought against them within that period).  

68.	In my view, in the circumstances outlined at paragraph 64 above, the legal certainty factor above is of very limited significance.

69.	In both cases, I am satisfied that the delay in making the proposed new claim/s has not caused any forensic prejudice to Ms Connolly.

70.	In each case, I am of the view that each proposed new claim involves, or would involve, substantially different areas of enquiry from those which have to be undertaken for the purpose of addressing the current claims.  (See paragraph 48 of Abercrombie).

Employment Judge:

Date and place of hearing:  21 and 22 August 2017, Belfast.

Date decision recorded in register and issued to parties: