THE INDUSTRIAL TRIBUNALS

CASE REF:	2382/14

CLAIMANT:		Vivienne Elizabeth Costley	

RESPONDENTS:	1.	Health & Safety Executive for Northern Ireland	
			2.	Pip Crook
			3.	Nichola Monson

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(1)	The claimant is precluded from pursuing her claim reference number 2382/14 on the basis that it would be an abuse of process under the rule in Henderson v Henderson.

(2)	The claimant’s claim was not lodged within the statutory three month time limit and it would not be just and equitable in all the circumstances to extend time.

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge McCaffrey

Appearances:

The claimant appeared in person and represented herself with assistance from her sister Ms Pamela Feeney.

The respondent was represented by Ms N Murnaghan QC instructed by the Departmental Solicitors Office.

ISSUES

1.	This pre-hearing review had been convened to deal with the following issues:-

(1)	Is the claimant precluded from pursuing the sole current claim on any of the following grounds:

(a)	res judicata/issue estoppel or 
(b)	abuse of process (in the Henderson v Henderson sense).

(2)	Is an industrial tribunal precluded from entertaining that claim because the claim has not been lodged within the relevant primary or secondary time limit?

(3)	Should the claimant be granted leave to amend her claim form so as to include any one, or several, or all of the additional acts specified in her amendment application of 25 October 2014?

2.	This claim was lodged on 14 October 2014.  On 25 October 2014 the claimant sought leave to amend her claim form in these proceedings by adding a number of alleged acts which were set out at paragraph 5 and subparagraphs 2-8 of the record of proceedings of a Case Management Discussion held on 7 March 2016.  At this hearing before me, the claimant decided that she no longer wished to apply to amend her claim to include the acts set out in her letter of 25 October 2014.  She wished to proceed solely on the issue of what she described as misrepresentation of information provided to Pensions Branch of the Northern Ireland Civil Service as set out in her claim form.  This is dealt with below.  I clarified that the claimant understood that if she decided to withdraw these allegations she could not pursue them at a later stage and she said that she understood that and that she did not wish to proceed with them.  Accordingly I do not need to consider the question of the proposed amendment to the claim form set out at paragraph (3) of the issues above but need to only deal with issues (1) and (2).

3.	The claimant complains in her claim form that on 1 August 2014, when preparing for an earlier claim against the respondent, she discovered two emails which had originally been sent on 8 March 2007 from Nicola Monson (another employee of the first named respondent) to the claimant.  The first email was one which the claimant agreed she had received in relation to training as a Trainee Health and Safety Inspector which she was to undertake.  The second email, which was the same as the first and was sent on the same date also from Nicola Monson to the claimant, purported to have an attachment to it, setting out a schedule of training and tutorial programmes for her training as a Health and Safety Inspector.  The claimant maintained she had never received this schedule of training.

4.	The background was that in March 2011 the claimant made a temporary injury award (“TIA”) application on the basis that she had had to do much more travel to England for training for this course than she had expected.  Part of that application was that she asserted that she had never received the schedule of training attached to the email of 8 March 2007.  The claimant therefore asserted that her claim to the Industrial Tribunal alleging victimisation in this matter was within time because it had been lodged on 14 October 2014 after she discovered the discrepancies in the emails on 1 August 2014.

5.	It was the respondent’s case that as the application for a TIA was submitted on 22 February 2011, that was when any alleged discrimination by way of victimisation would have occurred and that therefore the claimant’s claim was out of time.  It was in response to that TIA application that the respondent provided Pensions Branch with copies of the 8 March 2007 emails and attachments, which it said had been provided to the claimant before she started her training course.  They contended that even if it was accepted that the claimant had not received the original email in March 2007, she had made some seven subject access requests (SARS) to the respondent between 28 March 2011 and 17 March 2012 and the information showing the discrepancies in the emails was sent to the claimant in response to one of the subject access requests.  Indeed they specifically referred to a reply from Mr Gerry Thompson to the claimant dated 15 April 2011 enclosing a number of documents.  The claimant acknowledged that those documents included a copy of the email of 8 March 2007 together with a schedule of the tutorials planned for her training as a Health and Safety Inspector.  The claimant maintained that she had only received this email and the schedule attached to it in response to a SAR request to Pensions Branch in or around June 2014 and that it was only at this stage that she became aware that Pensions Branch had been given a copy of the schedule of tutorials.  

6.	It was the claimant’s case that she had only been aware of three tutorials alluded to in the body of the email of 8 March 2007.  However while the email refers to three individual tutorials, it also makes clear that Nicola Monson is “enclosing details of training with HSEGB.”  While the subject matter of three tutorials is referred to, dates are only given for one of them, and there is no other information in relation venue or times or anything of that nature.  I found the claimant’s assertions on this point confused and confusing.  While she was adamant that she had not received the schedule of training along with the original email, she initially said that she had not received the documents with Mr Thompson’s letter and then indicated that she had.  She said she had received some of the documentation only in response to a SAR from Pensions Branch, but was unable to produce that documentation.  The respondent pointed to a letter which the claimant sent on 8 August 2014 to Pensions Branch relating to the discrepancies in the emails and referring to the correspondence she had received from Mr Thompson on 16 April 2011.  The respondent also referred me to an extract from the claimant’s statement to the Pensions Branch in relation to her TIA statement, where she refers to being sent a list of GB courses on 8 March 2007 by email from Nicola Monson and pointing out that at that stage she had already handed in her notice and accepted the post as a Trainee Inspector.

7.	I am not persuaded by the claimant’s assertions in relation to this matter.  The documents disclosed to the claimant with Mr Thompson’s letter in April 2011 and her assertions in support of her application for a TIA contradict what she said before the tribunal.  It is my finding that the claimant had the necessary information regarding the schedule of training in her possession either in March 2007 when it was emailed by Nicola Monson or at the very latest when it was sent to her by Mr Thompson in response to her SAR request in April 2011.  Accordingly it is my finding that as a matter of fact she had in her possession the necessary information to bring a claim alleging victimisation (if she had wished to do so) by 16 April 2011 at the latest.  On that basis her claim should have been lodged by 16 July 2011.

8.	It was the respondent’s contention that as the claimant had lodged four other claims to the Industrial Tribunal in 2012 and 2013 (which had subsequently been determined at a hearing which had taken place over 16 days between 4 December 2014 and 3 July 2015 and in which a decision had been issued to the parties on 18 January 2016) the claimant had sufficient knowledge and information which meant she could have brought this claim as part of those original cases.  The respondent’s case was that under the rule in Henderson v Henderson, the claimant was now precluded from bringing such a claim.

9.	The claimant on the other hand argued that she had only had the information on which to ground the claim of victimisation against the first named respondent in relation to what she referred to as the “misrepresented emails” in June 2014 and that her claim had been lodged within time.  This was a shift from her initial statement that she saw the emails on 1 August 2014.  The claimant did not give a precise date when she had received the response to her subject access request from Pensions Branch.  If that reply was received some time in June 2014 then the claim should have been lodged at the latest by September 2014 and so the claim lodged on 14 October 2014 is on the face of it out of time.

THE RELEVANT LAW

The Rule in Henderson v Henderson 

10.	The first issue which I have to decide is whether the claimant is precluded from pursuing the sole current claim on the ground that it has already been determined by the Industrial Tribunal (and so was already decided under the res judicata rule) or that to do so would be an abuse of process under the case law in Henderson v Henderson (1843) 3 Hare 100.  Ms Murnaghan confirmed that she was not seeking to pursue a claim of res judicata in this case but argued that for the claimant to be allowed to pursue the claim would constitute an abuse of process under the rule in Henderson v Henderson.

11.	That case stated the law as follows:-

	“... Where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward the whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of the case.  A plea of res judicata applies, except in special cases, not only to points upon which the court is actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

12.	In more recent times the rule in Henderson v Henderson was considered by the House of Lords in Johnson v Gore Wood and Co (a firm) [2002] 2 AC 1 at 31.  Lord Bingham of Cornhill stated that there were important issues of underlying public interest in each case namely:

(a)	that there should be finality in litigation, 
(b)	that a party should not be twice vexed in the same matter and
(c)	to avoid the oppression of subjecting the defendant unnecessarily to successive actions.

	Lord Bingham added:-

	“The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.  I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later  proceedings involves what the Court regards as unjust harassment of a party.  It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been so as to render the raising of it in later proceedings necessarily abusive.  That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the Court by seeking to raise before it the issue which could have been raised before.  As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not ...”

Time Limits

13.	The second question which I have to consider is whether the tribunal is precluded from entertaining the claimant’s most recent claim because the claim was not lodged within the relevant primary or secondary time limit.  In this case the victimisation alleged by the claimant occurred when she made an application for a TIA in or around 22 February 2011.  She alleged that at that time the respondent had forwarded to the deciding body Ms Monson’s email of March 2007 with the attached schedule of tutorials.  The issue then was when the time limit began to run.  In any claim of disability discrimination (including victimisation) the time limits are set out in Schedule 3 to the Disability Discrimination Act 1995 (as amended) and provide as follows:-

	“3(1)  An industrial tribunal shall not consider a complaint under Section 8 unless it is presented before the end of a period of three months beginning when the act complained of was done.

	(2)	A tribunal may consider such a complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

14.	The claimant has alleged victimisation on the grounds of both sex discrimination and disability discrimination.  The relevant time limit in relation to sex discrimination is set out at Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) and provides:-

	“76(1)	An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of-
	
(a)	a period of three months beginning when the act complained of was done:

...

(5)	A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if in all the circumstances of the case, it considers it just and equitable to do so.”

15.	I do not consider it appropriate to set out the law in relation to amendment of a claim, as the claimant has now withdrawn all the proposed amendments set out in her letter of 25 October 2014.

REASONS AND DECISION

A.	The Rule in Henderson v Henderson

16.	It is the respondent’s contention in this case that the claimant’s claim constitutes an abuse of process under the rule in Henderson v Henderson.  The claimant says that this claim constitutes a new claim which is a victimisation claim as a result of her being denied a TIA in 2011.  She maintained that she had not known until August 2014 that Pensions Branch (which was dealing with the TIA) had been given a schedule of training courses, which she had not received and that therefore they were, in her words, making a decision on the wrong information (see paras 3 - 6 above).  As I have set out above, it is my finding as a matter of fact that the claimant had the necessary information to allow her to reach this conclusion in April 2011.  While she denied that she had received it under cover of Mr Thompson’s letter of 15 April 2011, I am satisfied that that information was enclosed and that the claimant referred to it in subsequent correspondence with Pensions Branch.

17.	I have read the decision of the Industrial Tribunal issued in January 2016 regarding the claimant’s claims issued in 2012 and 2013.  These variously raised complaints in relation to direct disability discrimination, disability-related discrimination, discrimination victimisation, a victimisation claim under the Sex Discrimination Order, failure to make reasonable adjustments and unfair dismissal.  The claim covered events from 2011 through until 2013 when the claimant was medically discharged.  While those claims did not specifically raise the issue which the claimant now raises in relation to the TIA, the decision does cover the events for the surrounding period and deals with a number of allegations in relation to the way that the claimant says she suffered discrimination on grounds of disability and gender, including issues in relation to the course work for her diploma in Regulatory Occupational Health and Safety which was a required qualification for a Health and Safety Inspector.

18.	Bearing in mind the crucial question (as identified by Lord Bingham) is whether in all the circumstances a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before, it is my view that in this case the claimant is misusing the process of the tribunal.  It is clear to me that the question of the TIA was in the claimant’s mind in February 2011 when she first made the application for it and was in her mind at subsequent stages when she raised appeals in February 2013 and May 2014.  It is my view, having heard the submissions of both parties in relation to this matter, that any question of the Pensions Branch having been given incorrect information regarding the TIA should properly have been raised as part of the claimant’s initial four claims in 2012 and 2013.  The claimant did not give any reason as to why she had not done so; her only excuse was that she did not have the information sooner.  It may be more accurate to say that she had not carefully read all the information she had sooner.  Had the claimant exercised reasonable diligence, she could have brought forward the claim regarding the TIA at that time.  There was nothing in the submissions put before me to suggest that there were any special circumstances in this case to justify a departure from the general rule in Henderson v Henderson.  In my view the respondent is entitled to finality in litigation and should not be “twice vexed”, in the words of Lord Bingham, in having to reopen these issues.  The original case clearly was a lengthy and detailed hearing, heard over 16 days.  It is not in my view in the public interest or in accordance with the overriding objective for the issue regarding the TIA to take up further court time.  

B.	Time Limit

19.	Even if I am incorrect in relation to my finding under the rule in Henderson v Henderson, the issue remains of the time limit for bringing the claim.  If it is the case that the information given to Pensions Branch in or around March 2011 in relation to the claimant’s injury award claim was erroneous, then any claim in relation to the act of victimisation should have been brought within three months of the act complained of.  That means that at the latest the claimant should have brought her claim of victimisation in relation to this action by sometime in June 2011.  Instead of this her claim was initiated only in August 2014.  The claimant says she only became aware of the discriminatory act at that time.  I pointed out to her the wording of the legislation, which says that a claim must be lodged “within three months of the act complained of” rather than the date of the claimant’s knowledge of it.  Furthermore, as I have found above, I am satisfied that the claimant became aware of this matter in or around 16 April 2011 when she received Mr Thompson’s correspondence with enclosures.  If the claimant was concerned at that stage that she had suffered victimisation, she should have acted promptly in bringing her claim.

20.	In all the circumstances of the case I do not consider that it would be just and equitable for me to extend time for the claimant to bring a claim in 2014 arising from an event which occurred in 2011.  I am conscious of the overriding objective set out in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, which requires tribunals to deal with cases justly.  This includes dealing with cases in ways which are proportionate to the complexities and importance of the issues, ensuring that cases are dealt with expeditiously and fairly and saving expense.  I do not consider that it would be in accordance with the overriding objective to allow the claimant to bring a further claim of victimisation in relation to treatment she said she suffered in 2011 when she applied for a TIA.  The claimant raised a number of detailed issues in relation to her treatment by her employer from 2011 to 2013 in her previous claims.  She cannot expect now to have another bite at the cherry in claims lodged approximately two years after the first of those original claims.  I do not consider it would be just and equitable in all the circumstances to extend time and accordingly the claimant’s claim is dismissed.

Employment Judge:

Date and place of hearing:	13 May 2016, Belfast.

Date decision recorded in register and issued to parties: