THE INDUSTRIAL TRIBUNALS

CASE REF:	920/08

CLAIMANT:			Justen Peter Bradley

RESPONDENTS:		1.	Meridio Limited
				2.	Autonomy Systems Limited

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that:-

(1)	the claimant is given leave to amend his claim presented to the tribunal on 4 July 2008; and his claim is so amended by including a claim, pursuant to Article 71(1A) of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), as set out in the Notice of Amendment, dated 16 April 2009, by way of addition to the statement of case, first paragraph at the end thereof – “further, the redundancy process amounted to a detriment within Article 70B of the 1996 Order”;

(2)	the respondents are given leave to amend their response presented to the tribunal on 19 September 2008, within 14 days of the date this decision is registered and issued to the parties, to enable it to respond to the claimant’s claim, as now amended, as set out above, insofar as it considers it appropriate and necessary.  

Constitution of Tribunal:
Chairman (sitting alone):		Mr N Drennan QC

Appearances:
The claimant was represented by Mr K Denvir, Barrister-at-Law, instructed by Campbell Stafford, Solicitors.
The respondents were represented by Mr D Dunlop, Barrister-at-Law, instructed by Tughans, Solicitors.

Reasons

1.	This pre-hearing review was arranged to consider the claimant’s application to amend the claim form presented to the tribunal on 4 July 2008, as set out in the Notice of Amendment, dated 16 April 2009, by way of addition to the statement of case, first paragraph at the end thereof - “further, the redundancy process amounted to a detriment within Article 70B of the 1996 Order”.  The representatives of the parties agreed to short notice of this hearing and also to a Chairman Sitting Alone to determine the said application.

2.1	The claimant presented a claim to the tribunal on 4 July 2008.  In that claim he has made a claim of unfair dismissal but has also made a claim, pursuant to Article 134A of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) of automatic unfair dismissal on the grounds that the reason (or, if more than one, the principle reason) for the dismissal is that he made a protected disclosure.  

2.2	Following various Case Management Discussions held by the tribunal to identify the issues which the tribunal will be required to determine in relation to the claimant’s said claim, it became apparent that  the claimant also wished to rely upon an alternative claim, pursuant to Article 71(1A) of the 1996 Order, arising from the alleged said protected disclosure, pursuant to Article 70B of the 1996 Order; and it would therefore be for the claimant to make an application for leave to amend his claim form.

Article 70B of the 1976 Order provides as follows:-

“(1)	A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

(2)	This Article does not apply where –

(a)	the worker is an employee, and

(b)	the detriment in question amounts to dismissal

…

(3)	… .”

Article 71(1A) provides as follows:-

“A worker may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 70B.”

The claimant’s representative indicated, at the Case Management Discussion, prior to this hearing, the claimant wished to amend his claim to the tribunal to state that the redundancy process amounted to a detriment, pursuant to Article 70B of the 1996 Order and to thereby include, in his claim form, a claim pursuant to Article 71(1A) of the 1996 Order; as well as his claim pursuant to Article 134A of the 1996 Order.

There was no dispute between the representatives that, in order for the claimant to make such a claim, he required to make an application to the tribunal for leave to amend his claim form presented to the tribunal on 4 July 2008.  There was no dispute between the representatives that such an application had to be the subject of a pre-hearing review, having regard to the nature of the said amendment and the provisions of Rule 17(2) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules of Procedure’), which provides:-

“Any determination of a person’s civil rights or obligations shall not be dealt with in a Case Management Discussion.”

2.3	By Notice dated 16 April 2009, the claimant formally sought to amend his claim form, presented to the tribunal on 4 July 2008, ‘by way of addition to the statement of case, first paragraph at the end thereof - “further, the redundancy process amounted to a detriment within Article 70B of the 1996 Order”’.  

2.4	Harvey on Industrial Relations and Employment Law Volume 5 Section T Paragraph 311.03 states:-

“A distinction may be drawn between –

(i)	amendments which are merely designed to alter the basis of an existing claim, though without purporting to raise a new distinct head of complaint; 

(ii)	amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim; and

(iii)	amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.”

2.5	It was not disputed by the representatives (see further Harvey Volume 5 Section T Paragraphs 312 – 312.02) that the amendment sought to be made by the claimant, as set out above, was an amendment falling within Category (ii) and was, in essence, putting a new ‘label’ on facts already pleaded.  It was further agreed that such an amendment would not require to be subjected to scrutiny in respect of the time-limits, but could be considered under the general principles applicable to amendments, as summarised in the well-known case of Selkent Bus Company Ltd  v  Moore [1996] IRLR 661.

	As Mummery J, as he then was, stated in the Selkent case:-

“Whenever the discretion to grant an amendment is evoked, the tribunal should take into account all the circumstances and to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it … .”

It is well established that relevant factors to be taken into account, would include the nature of the amendment, the applicability of time-limits, if any, and the timing and manner of the application. 

2.6	There was no doubt that the amendment sought to be made by the claimant was not a minor amendment, such as the correction of clerical and typing errors; but was the inclusion of the further claim that the claimant had been subjected to a detriment in contravention of Article 70B of the 1996 Order pursuant to Article 71(1A) of the 1996 Order – which was a distinct and separate claim to the claim already made, under Article 134A of the 1996 Order.  As indicated above, given the type of amendment sought, the tribunal did not have to consider applicable time-limits.  There is no doubt that it is clearly unfortunate that this claim, pursuant to Article 70B and Article 71(1A) of the 1996 Order, had not been made previously.  The necessity to make the application arose during the course of the said Case Management Discussions.  However, in the absence of such discussions.  I am concerned the identification of this further issue might not have arisen until at or close to the commencement of the substantive hearing, with all the potential problems of adjournment and additional costs.  This is a clear example of the worth of such Case Management Discussions to ensure that all issues have been properly identified by the parties.  In any event, as Mummery J in Selkent made clear, an application should not be refused solely because there has been delay in making it.  Mr Dunlop fairly and frankly acknowledged that no issue of prejudice arose for the respondents, other than the fact that the respondents would require to defend an additional head of claim.  Mummery J made clear, in the course of his judgment in the Selkent case, that the paramount consideration is the relative injustice and hardship involved in refusing or granting an amendment.

2.7	In conclusion, I was satisfied, in the circumstances referred to above, the greater injustice and hardship would be to the claimant if he was not given the opportunity to allow the tribunal to determine this further claim, pursuant to Article 70B and 71(1A) of the 1996 Order.  

Therefore, subject to a matter addressed later in this decision, I was satisfied that, in the exercise of my discretion, it was appropriate for me to grant the claimant leave to amend his said claim.

2.8	For the avoidance of doubt, I must make clear, in reaching my decision, whether or not to grant the claimant’s application to amend his said claim, as set out above, I have not reached any conclusion as to the merits or strengths of the claimant’s claim, as amended.  That will be a matter for the tribunal at the substantive hearing.  

2.9	Insofar as the claimant’s claim was a claim of unfair dismissal, it was not disputed by the representatives of the parties, that any such claim did not require to be the subject of the statutory grievance procedure.  

Regulation 6(5) of the Employment (Northern Ireland) Order 2003 (Dispute Resolutions) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’) provides that:-

“Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.”

As set out previously, under Article 71(1A) of the 1996 Order, a worker may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 70B.  There was no dispute between the representatives that the claimant, in amending his said claim to a claim that the redundancy process amounted to a detriment within Article 70B of the 1996 Order was presenting an amended claim to the tribunal pursuant to Article 71(1A) of the 1996 Order.  Such a claim, pursuant to Article 71(1A) of the 1996 Order, that he has been subject to a detriment in contravention of Article 70B of the 1996 Order, is a claim that is subject to the statutory grievance procedures contained in the Employment (Northern Ireland) Order 2003 (Dispute Resolutions) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’) – see further Schedule 3 of the 2003 Order, ‘Article 71 of the 1996 Order (Detriment in Employment)’.  

If a claimant, whose claim is subject to the statutory procedures, is unable to show he has brought a grievance under the statutory procedures, then issues arise under the 2003 Order and 2004 Regulations in relation to whether the tribunal has jurisdiction to hear any such claim.

In this particular case, before determining whether or not the claimant is in a position to establish he had made such a grievance under the procedures, consideration has to be given whether the said statutory procedures apply to such a claim of ‘detriment in employment’.

In my opinion this requires a tribunal to have to determine, as appropriate and necessary, whether the grievance procedures apply to such a claim, having regard to the terms of Regulation 6(5) of the 2004 Regulations and, in particular, the meaning of ‘contemplating dismissing the employee’, where the claimant’s claim of detriment in employment relates to the redundancy process followed in this matter.

There are various authorities in relation to what is meant by ‘contemplating dismissal’, as set out in Regulations 6(5) of the 2004 Regulations and/or, if the statutory procedures apply, what is meant by a grievance.  From the submissions of the parties, it became clear there was no agreement, in relation to this claim, whether the statutory grievance procedures applied and/or, if so, whether a relevant grievance had been made in accordance with the 2003 Order and 2004 Regulations.  Both counsel recognised that, to determine such issues could depend on the findings of fact found by a tribunal, after hearing the evidence at a hearing.

There has been some doubt whether, a tribunal considering an amendment application, is required to have regard, when exercising its discretion, to the fact that an issue may arise in relation to whether the relevant statutory grievance procedures apply to any such claim, the subject of the amendment and, if so, whether the procedures have been followed.  

	In Blackstones Employment Law Practice 2009, at Paragraph 3.9, it is stated:-

“The position appears to be different in relation to amending the claim form.  It is still not clear whether an amendment which seeks to raise a matter to which the statutory procedure applies will be allowed if the employee has not submitted a Step 1 grievance letter in relation to the matter and allowed 28 days for a response.  To disallow the amendment would seem to be contrary to the overriding objective to deal with cases in a just and cost effective manner, but to allow the amendment would enable the employee to circumvent the statutory procedure, and would potentially be open to challenge on the ground that the tribunal has no jurisdiction under Section 32 of the Employment Act 2002 … .”

Employment Court Practice 2008 Paragraph 4.125 also suggests issues, relating to application of the statutory grievance procedure, may be a further factor to be considered in relation to any application to amend a claim.

However, in light of what is set out below, it was not necessary for me to resolve this matter further, in relation to the claimant’s application to amend his claim.  Both representatives were in agreement that, if I was satisfied that the application to amend should be granted, without any consideration of any issue relating to the statutory grievance procedures, then I should do so; and, if the respondents wished to raise any issue relating to the statutory grievance procedures in relation to the claimant’s amended claim, then the respondents should be able to do so in any amended response form.  The representatives further agreed any such issue should be determined in the course of the substantive hearing.  Regardless of the above references in the textbooks, as set out above, I agree with the approach of the representatives, in this case, which I consider was appropriate and sensible but was also in accordance with the terms of the overriding objective.  Further, I agree, in the circumstances of this case, that if any such issue is to be raised by the respondents in their amended response form, it could not be determined, having regard to the nature of the claim, as amended, and the terms of Regulation 6(5) of the 2004 Regulations, other than in the context of a substantive hearing (see also Ryder  v  Northern Ireland Policing Board [2007] NICA 43).  In other applications to amend a claim, depending on the circumstances, a tribunal in deciding whether to exercise its discretion to amend may have to take into account issues relating to the application of the statutory grievance procedure.

2.10	In light of the foregoing, I therefore decided, in the exercise of my discretion, that the claimant should be given leave to amend his claim to include a claim, pursuant to Article 71(1A) of the 1996 Order, as set out in the Notice of Amendment dated 16 April 2009; and I therefore ordered that the claim be so amended.

3.	In light of the foregoing, I further ordered that the respondents were to have leave to amend their response, if they wished to do so, within 14 days of the date this decision is registered and issued to the parties to enable them to respond to the said amendment of the claimant’s claim.

Chairman:

Date and place of hearing:	16 April 2009, Belfast

Date decision recorded in register and issued to parties: