THE INDUSTRIAL TRIBUNALS

CASE REF:	8757/18

CLAIMANT:			Michael John Taylor

RESPONDENT:		1. Premiere Employment Group Limited
				2. Gist Logistics

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:

(i)	The claimant’s application to amend his claim is refused;

(ii)	The claimant’s claims for breach of the Agency Workers’ Regulations (Northern Ireland) 2011 was presented outside the statutory time-limit and it is not just and equitable to extend time; 

(iii)	The claimant’s claims for breach of contract and unlawful deductions from wages have not been brought within the relevant statutory time-limit or within such further period as the tribunal considers reasonable;  

(iv)	The tribunal does not have jurisdiction and therefore the claimant’s claims are dismissed.  

Constitution of Tribunal:
Employment Judge (sitting alone):		Employment Judge Orr

Appearances:

The claimant appeared on his own behalf and was self-represented.

The first-named respondent was represented by Ms Cheryl Jamison, 
Barrister-at-Law.
The second-named respondent was represented by Mr S Doherty, Barrister-at-Law.

BACKGROUND

1.	The claimant was engaged as an agency worker by the first-named respondent, supplied to the second-named respondent from March 2012 until October 2014, as a HGV Grade 1 Driver.  

2	The claimant became seriously ill, and was hospitalised for a period of three months from October 2014.  He underwent cardio rehabilitation and cardio physiotherapy from January 2015 until December 2015.  

3.	The claimant received statutory sick pay from October 2014 until the termination of his contract in May 2015.  

4.	The claimant lodged his tribunal claim on 4 July 2018 asserting breach of the Agency Workers’ Regulations and unlawful deductions from wages in relation to an alleged difference in pay between him, as an agency worker and permanent members of staff employed by the second-named respondent.

5.	Both respondents in their responses to the claim asserted that the claimant’s claim is out-of-time and that the tribunal has no jurisdiction to determine the claim.

6.	At a Case Management Discussion on 24 October 2018 the Employment Judge directed that a Pre-Hearing Review be listed to deal with the following preliminary issues:-

	(1)	whether the claimant’s claim should be amended to include a claim of disability discrimination?

	(2)	whether it was reasonably practicable for the claimant to have brought his claim in respect of breach of contract and unlawful deductions from wages within the relevant statutory time-limit?

	(3)	if not, was the complaint received within such further period as the tribunal considers reasonable?

	(4)	whether the claimant’s claim under the Agency Workers’ Regulations (Northern Ireland) 2011 was presented within the statutory time-limit of three months and if not, 

	(5)	whether in all the circumstances it is just and equitable to extend time, as a condition of the claimant being allowed to proceed?

7.	The claimant gave evidence at the Pre-Hearing Review and was cross examined.  

8.	The claimant accepts that both his claims have been lodged outside the initial statutory time-limits of three months.  

9.	The claimant’s amendment application was contained in his letter dated 
6 November 2018 and related to post-employment discrimination:-

	“In relation to DDA 1995 – Section 16A(4) – Failure to Make Reasonable Adjustments.

	The PCP is with regard to the Policy and Criteria applied to all employees to give pay-parity and back-pay.

	During my employment I became seriously ill and disabled.  All employees doing the same job as me were given pay-parity and back-pay.  No reasonable adjustment was applied/modified to the criteria used, to include me.  I was put at a substantial disadvantage as my employers were aware of my disability and that I was unfit to return to work and still decided not to include me.

	In relation to DDA – Section 16A(3) (4) – Direct Discrimination 

	My actual comparator under the above is that an employee doing the same job as me, had the employment terminated by dismissal.  Yet he was included in back-pay after his employment ceased.  I however had my employment terminated due to ill health and disability and was not treated the same as the other employee”.

THE CLAIMANT’S SUBMISSIONS

Amendment Application

10.	In his amendment application, the claimant contended that by reason of previous industrial tribunal proceedings in December 2016 by other employees (not including the claimant) which resulted in pay parity between agency workers and employees of the second-named respondent and a back-pay settlement, there was a duty to make a reasonable adjustment to pay him back-pay also.

11.	In addition, the claimant claims direct disability discrimination identifying Mr Sidney Coulter as his comparator.  He alleges Mr Coulter issued industrial tribunal proceedings in relation to pay.  He relied on him as a comparator because Mr Coulter was no longer engaged by the respondent.  It was the claimant’s contention that Mr Sidney Coulter was a comparator, in the same position as him, in that his employment had ceased and he had received back-pay.

Time Limits

12.	The claimant’s evidence in relation to the delay in lodging his claim was, in summary, as follows:-
	(1)	He spent three months in hospital from October 2014 to December 2014.  He was in receipt of Statutory Sick Pay from that date until 6 May 2015.

	(2)	From May 2015 he was in receipt of Employment Support Allowance.  

	(3)	For the year January 2015 to December 2015 he was undergoing extensive physiotherapy and cardio rehabilitation.  

	(4)  	A colleague visited him in July 2017 at which time he became aware of colleagues receiving back-pay and pay parity (the reference to pay parity is in comparison with permanent employees of the second named respondent).  

	(5)	He emailed the first named respondent on 18 July 2017 as follows:

		“I have been informed that HGV drivers employed by Premiere People NI, who were working for Gist Logistics, have now been receiving offers of back-pay and bonuses under Pay-Parity.

		I started to work for Gist as an agency driver on the 20th February 2012 and moved onto the higher pay scale in April 2012.  Therefore I wish to claim Pay-Parity on a comparison with Gist employed drivers from April 2012 until I became ill in October 2014”.

		He received no response and chased this by a further email on 31 July 2017.  The response from the first named respondent was:- 

“As you are no longer employed with Premiere People and did not raise this as an issue we are unable to provide or renew your request for information.”. 

	 The claimant, in evidence stated that as far as he was concerned, at that time, the matter “wasn’t going anywhere”.

	(6)	In March 2018 another ex-colleague visited the claimant and in conversation referred to a meeting with the Labour Relations Agency where an agreement had been reached in respect of back-pay.

	(7)	The claimant contacted the Labour Relations Agency at this time who advised him to contact the Law Centre, which he did in June 2018 and he received advice to raise a grievance.  He also contacted the Equality Commission in July 2018.

THE RESPONDENTS’ SUBMISSION

13.	The respondents’ representatives made the following points:-

	(1)	the claimant’s amendment application was manifestly hopeless:-

	(i)	he had not identified an appropriate comparator for either his claim of failure to make reasonable adjustments or direct discrimination;

	(ii)	The PCP being relied upon by the claimant was “all employees doing the same job as me were given pay parity and back-pay.  No reasonable adjustment was applied/modified to the criteria used, to include me”; the claimant was unable to identify the substantial disadvantage he suffered in comparison with a person who was not disabled; 

	(iii)	the duty to make reasonable adjustments arises in relation to job-related matters;

	(iv)	the reason that back-pay was paid to any employee or ex‑employee was as a consequence of bringing proceedings and back-pay was paid as part of a settlement, unrelated to the claimant’s disability.

	(2)	The second-named respondent did not contend that during the period the claimant was in hospital or for the 12 months thereafter (January 2015 to December 2015) that it was reasonably practicable for the claimant to have lodged his proceedings and in effect conceded that it would be just and equitable to extend time until that date.

	(3)	The claimant cannot rely on ignorance of his rights as he had access to the internet, was clearly able to send emails asserting his rights, was a retired member of a union and was capable of contacting the Law Centre, the Labour Relations Agency and the Equality Commission for advice in 2018.  

	(4)	The claimant provided no reason why the claim was not lodged in 2017 or why it had not been lodged until 4 July 2018.  

	(5)	Given the extensive delay there was a clear prejudice to the respondents in extending time.  

THE LAW

Amendment Application

14.	Guidance on the way in which a tribunal’s discretion is exercised in relation to amendments is set out in the Selkent Bus Company v Moore 1996 ICR 836 by Mr Justice Mummery:-

	“Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.
	...
What are the relevant circumstances?  It is impossible and undesirable to attempt to list them exhaustively but the following are certainly relevant;

(a)	The nature of the amendment 

	Applications to amend are of many different kinds, ranging, on the one hand from the correction of clerical and typing errors, the addition of factual details to existing allegations and the additions or substitution of other labels for facts already pleaded to, or, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim.  The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b)		The applicability of statutory time-limits 

If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time-limit should be extended under the applicable statutory provisions

(c)		The timing and manner of an application  

An application should not be refused solely because there has been a delay in making it.  There are no time-limits laid down in the Rules for the making of amendments.  The amendments can be made at any time before, at, or even after the hearing of the case.  Delay in making the application is, however, a discretionary factor.  It is relevant to consider why the application was not made earlier and why it is now being made; for example, the discovery of new facts or new information appearing from documents disclosed in discovery.  Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment.  Questions of delay, as a result from adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”

15.	Harvey states at paragraph 311.3 of Part T:-

“A distinction may be drawn between:-
 
(1)		Amendments which are merely designed to alter the basis of an existing claim but without purporting to raise a new distinct head of complaint.

(2)		Amendments which add or subject a new cause of action which is linked to or arises out of the same facts as the original claim.

(3)		Amendments which add or subject a wholly new claim or cause of action which is not connected to the original claim at all.”

16.	One of the factors that may be taken into account in determining whether a new claim should be allowed is an assessment of the merits of the new claim.  In the case of (Gillett v Bridge 86 Limited UKEAT 0051/17) Judge Soole held that a tribunal is entitled to consider whether the new claim has reasonable prospects of success, stating that if a claim that has been presented could be struck out as having no reasonable prospects of success “it would be inconsistent and anomalous if an application to amend could not be refused on the same basis”.  

Time-limits

17.	In relation to a claim for unlawful deductions, a tribunal may consider a complaint presented “within such further period as it considers reasonable in a case where it is satisfied that it was not reasonably practicable (tribunal emphasis) for the complaint to be lodged before the end of the period of three months”. (Article 55(4) of the Employment Rights Order (Northern Ireland) 1996.)

18.	A tribunal may extend time if it considers it just and equitable (tribunal emphasis) to do so in all the circumstances in the claimant’s claim for breach of the Agency Workers Regulations.  (Regulation 18(4) and (5)L of the Agency Workers Regulations (NI) 2011.)

19.	In relation to each test, the onus of proof is on the claimant.

“Reasonably Practicable Test”

20.	In relation to an application for an extension of time under the ‘not reasonably practicable test’ the onus of proof is on the claimant to establish that it had not been reasonably practicable or ‘reasonably feasible’ for the complaint to have been presented before the end of the three month period or before the end of such further period as the tribunal considers reasonable.

21.	The Employment Appeal Tribunal in Bodha  v  Hampshire Area Health Authority [1982] ICR 200 concluded that the ‘reasonably practicable’ test for an extension of time did not permit an employee to plead that it had not been ‘reasonable’ for him to present his claim for unfair dismissal before an internal appeal procedure had been completed.  It concluded that the correct test was a strict test of practicability, namely where the act of presenting the complaint in time was reasonably capable of being done.  It held:-

“The statutory words still require the industrial tribunal to have regard to what could be done albeit approaching what is practicable in a common sense way.  The statutory test is not satisfied just because it was reasonable not to do what could be done.”

22.	In Palmer  v  Southend-on-Sea Borough Council [1984] ICR 372, the Court of Appeal considered the ‘reasonably practicable’ test for an extension of time.  The Court stated:-

“In the end, most of the decided cases have been decisions on their own particular facts and must be regarded as such.  However we think that one can say that to construe the words ‘reasonably practicable’ as the equivalent of ‘reasonable’ is to take a view too favourable to the employee.  On the other hand, ‘reasonably practicable’ means more than merely what is reasonably capable physically of being done – different for instance, from its construction in the context of the legislation relating to factories : compare Marshall  v  Gotham Company Ltd [1954] AC 360.  In the context on which the words are used in the Employment Protection (Consolidation) Act 1978, however ineptly as we think, they mean something between these two.  Perhaps to read the word practicable as the equivalent of ‘feasible’ as Sir John Brightman did in Singh’s Case [1973] ICR 437 and to ask colloquially and untrammelled by too much legal logic – ‘was it reasonably feasible to present the complaint to the industrial tribunal within the relevant three months?’ – is the best approach to the correct application of the relevant sub-section.”

“Just and equitable test”

23.	In Robertson v Bexley Community Centre [2003] IRLR 434, the Court of        Appeal stated:-

“It is also important to note that the time-limits are exercised strictly in employment and industrial cases.  When tribunals consider their discretion to consider a claim out of time on just and equitable grounds, there is no presumption that they should do so unless they can justify failure to exercise the discretion, quite the reverse, the tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so, the exercise of discretion is the exception rather than the rule.”

24.	In Department of Constitutional Affairs v O’Brien UK EAT/0139/07, Mr Justice Langstaff stated:-

“1.	Time-limits are draconian.  However, they are not contrary to Article 6 of the Convention of Human Rights, provided there is a means of ameliorating the necessary harshness.  A time-limit of three months is familiar territory to many of the claims which come before the Employment Tribunal jurisdiction.

	2.	In this claim, the harshness of a three month cut-off, for what might otherwise be a perfectly good claim, is ameliorated by the provision that a tribunal may hold that it is just and equitable for the claimant to proceed, notwithstanding the expiry of the relevant time-limit.  However, it is plain from the very nature of time-limits that they are intended to be of general application, subject only to legitimate exceptions; and it must follow that good reason must be shown for such exceptions.”

25.	In British Coal v Keeble [1997] IRLR 336 the EAT suggested that a tribunal would be assisted by the factors mentioned in Section 33 of the Limitation Act 1980, which deals with the exercise of discretion by the courts in personal injury cases.  “It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular to:-

(d)	the length of and reasons for the delay;

(e)	the extent to which the cogency of the evidence is likely to be  affected by the delay;

(f)	the extent to which the party sued had cooperated with any request for information;

(g)	the promptness with which the plaintiff acted once her or she knew of the facts giving rise to the cause of action; and

(h)	the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.”

The discretion under this test is broader than under the “not reasonably practicable” test.

DECISION 

Amendment Application

26.	The tribunal refuses the claimant’s application to amend his claim and in balancing the injustice and hardship of granting amendments against the injustice and hardship of refusing the amendment, the tribunal took into consideration the following.

•	The claimant’s amendment application is clearly a “Category 3 amendment” - as defined by Harvey and set out in paragraph 15 above which adds “a wholly new claim and a substantial alteration claiming a new cause of action”.

•	The claimant’s amendment was comprised of a “post employment” reasonable adjustments claim, as well as a claim of direct disability discrimination.  His comparator was a fellow employee who had issued industrial tribunal proceedings.  The claimant was clearly not in the same position as his comparator, as he had not issued proceedings.  The issuing of tribunal proceedings was the reason for the decision to make a payment of back-pay and was unrelated to the claimant’s disability.  The application of the alleged policy/PCP did not subject the claimant to a substantial disadvantage in comparison to a non-disabled person.  The claimant does not dispute that the reason for the decision to make a payment of back-pay was based on employees having brought proceedings.  The tribunal therefore determines that the claimant’s claim for disability discrimination has no reasonable prospects of success and is manifestly hopeless.    

•	The delay in this amendment application is very considerable – the application was lodged over three years outside the initial statutory time limit.

•	The claimant gave no good explanation for the delay, he was fully aware from July 2017 of his legal rights, as clearly set out in his email to the first named respondent:-

 “Therefore I wish to claim Pay Parity on comparison with Gist employed drivers from April 2012 until I became ill in October 2014”, his email also stated “I have been informed that HGV drivers employed by Premiere People NI who were working for Gist logistics, have now been receiving offers of back pay and bonus under-pay parity”. 

Accordingly the tribunal declines to allow the amendment application.

Time Limits

“Reasonable practicable test”

27.	Was it reasonably practicable for the claimant to have brought his claim in respect of breach of contract and unlawful deductions from wages within the relevant statutory time limit?  If not, was the claimant’s complaint received within such further period as the tribunal considers reasonable?

28.	Even taking into account the respondent’s concessions regarding reasonable practicability of bringing proceedings up to December 2015, the claimant provided no evidence to the tribunal nor could the tribunal determine from its own examination of the evidence and documentation as to why it was not reasonably practicable or feasible for the claimant to lodge his claim promptly after he first says he became aware of the factual circumstances which gave rise to this claim sometime in July 2017.

29.		It was open to the claimant anytime from August 2017 to have sought legal or other expert advice in relation to his claim which he was clearly able to do in 2018 and he provided no evidence as to why he did not or could not do so in 2017.  From July 2017 he was fully aware of the facts which provided him with the basis for a claim of pay parity or back-pay as evidenced by the content of 

	his emails to the first named respondent.  The tribunal finds that this claim was not lodged within such further period as it considers reasonable.

‘Just and Equitable’

30.	Was the claimant’s claim under the Agency Workers’ Regulations (Northern Ireland) 2011 presented within the statutory time-limit of three months and if not, is it just and equitable to do so in all the circumstances?

31.	The duration of the delay in this case was considerable.  

32.	The claimant did not act promptly to take steps to obtain any legal advice as to his possible entitlements in relation to the disparity between his pay and those of permanent members of staff.  He made enquiries with the respondent and by his own admission accepted in 2017 that “it wasn’t going anywhere”.

33.	The claimant provided no explanation for the delay from the period July 2017 until August 2018.

34.	In considering the factors set out in the “Keeble” case (referred to above) I considered the length of and the reasons for the delay (a); the promptness within which the claimant acted once he knew of the facts giving rise to the cause of action (d); and the steps taken by the claimant to obtain appropriate professional advice once he knew of the possibility of taking action (e).  

	The cogency of evidence surrounding this case is unlikely to be affected by the delay and the extent to which the party sued had cooperated with any request for information is irrelevant to this case.  

	Although there is no legal requirement for the tribunal to go through the list of factors in every case, the refusal to extend time has been taken based on the duration of the delay, the lack of a reason for the delay and the fact that the claimant did not act promptly to obtain appropriate professional advice once he knew of the possibility of taking actions.  The tribunal finds that it is not just and equitable in all the circumstances of this case to extend the time limit.

Employment Judge:

Date and place of hearing: 30th November 2018, Belfast.

Date decision recorded in register and issued to parties: