THE INDUSTRIAL TRIBUNALS

CASE REF:	5346/18

CLAIMANT:	Thomas Andrew Cuthbert

RESPONDENT:	Voscuris Limited

PRE-HEARING REVIEW AMENDMENT DECISION 

The decision of the tribunal is that the claim is amended to the extent set out in this decision.

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge Murray

Appearances:

The claimant was represented by Mr Anderson, Barrister-at-Law, instructed by Mr Magee of Proactive Lawyers Limited.

The respondent was represented by Mr Phillips, Barrister-at-Law, instructed by Mr Kelly of Worthingtons Solicitors.

REASONS

1.	The claimant made application to amend his claim to include the claims and allegations set out in writing in the attached document.

2.	The claimant gave evidence on his own behalf and did so by adopting a written submission as his evidence-in-chief in relation to the proposed amendment and the reasons for that amendment.  Mr Anderson declined the opportunity to ask any questions on examination-in-chief.  Mr Phillips cross-examined the claimant and the claimant provided some clarification on some of the categories of the proposed amendment in answer to questions from the tribunal.  Both counsel made submissions on the exercise of the tribunal’s discretion.  No authorities were referred to save the Selkent case which was referred to by Mr Phillips.

THE LAW

3.	In the case of Selkent Bus Company v Moore 1996 ICR 836 it was stated as follows:-

	“Whenever the discretion to grant 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 addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim.  The tribunal has 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.”

4.	The decision on whether or not to allow an amendment is an exercise of discretion on the part of the tribunal.  The tribunal must take account of all the circumstances and must balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.  

5.	Harvey at Division P1 paragraphs 311 onwards deal with amendment of claims.

6.	In relation to the issue of whether an amendment alters an existing claim or makes a new claim the following paragraph in Harvey (312.04) relates to the comments of Underhill LJ in the case of Abercrombie v Aga Rangemaster Ltd:

		“Underhill LJ summarised the approach adopted by the EAT and Court of Appeal when considering applications to amend ‘which arguably raise new causes of action’ (para 48).  This is:

			“… to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted.” 

7.	At paragraph 312.08 of Harvey the Court of Appeal decision in Housing Corporation v Bryant [1999] ICR 123 CA is referred to as follows:

		“In order to determine whether the amendment amounts to a wholly new claim, as opposed to a change of label, it will be necessary to examine the case as set out in the original application to see if it provides a ‘causative link’ with the proposed amendment (see Housing Corpn v Bryant [1999] ICR 123, CA).”

8.	Harvey at paragraph 312.08 refers to the case of Foxtons Limited v Ruweil UKEAT/0056/08 where Elias J stated as follows:

		“It is not enough even to make certain observations in the claim form which might indicate that certain forms of discrimination have taken place; in order for the exercise to be truly a relabelling one, the claim must demonstrate the causal link between the unlawful act and the alleged reason for it.  In other words, in this case it would have to identify not merely that there had been some discrimination but that the dismissal was by reason of sex discrimination.”

9.	At paragraph 312.09 of Harvey it states:

		“However, although there may be an absence of a link between the case as pleaded in the original claim and the proposed amendment, this will not be conclusive against the amendment being allowed.  In Evershed v New Star Asset Management UKEAT/0249/09 (31 July 2009, unreported), Underhill J pointed out that it is no more than a factor, the weight to be given to it being a matter of judgment in each case (para 24).  When considering whether to allow an amendment, an employment tribunal should analyse carefully the extent to which the amendment would extend the issues and the evidence.”

FINDINGS OF FACT AND CONCLUSIONS

10.	I found the following primary facts proved on balance of probabilities and record below the key findings of fact drawn from all the evidence presented to me including that given by the claimant.
11.	The claimant alleged that he was dismissed on 4 December 2017 in that he resigned.  The claimant stated in evidence at the PHR that his case was that this was the date of the end of his period as an employee for the respondent.

12.	The claimant presented a claim form on 1 March 2018 and at that time he was unrepresented.  In the claim form he ticked the boxes claiming unfair dismissal (including constructive dismissal) and claimed notice pay, arrears of pay, breach of contract and stated that he was not paid amounts as a contractor.  The claim for discrimination on grounds of religion was rejected at vetting stage and does not form part of these proceedings.  

13.	The narrative in the details of the claim in the ET1 at part 7.4 headed ‘Details of your Claim’ stated as follows:

		“Since crescent capital invested Deirdre Terrins became involved and discriminated against me on a continuous basis.  This included derisory and negative comments as well as removing payments due to me.  The company asked for and continues to ask for work while refusing to pay amounts owed and has begun to increase hostility.

		Deirdre Terrins being the key person behind attacks.

		This is submitted now to meet the deadline follow up evidence can be provided on request.”

14.	An email dated 2 March 2018 the claimant added the following narrative to his claimant.  It was accepted by the respondent in these proceedings that the content of that email formed part of the claim form:

		“To add to my submission, I during the course of my time had become aware of issues of practice related to how monies had been dealt with from Invest NI/ public purse that I had felt where inappropriate.  I have been told that my plan to whistleblow on the activity was perhaps the reason why I was treated so poorly.

		This was not in my original submission but would be an important addition.  I intend to discuss the issues with a lawyer and will be back with full information in due course.”

15.	The claimant instructed Mr Magee of Proactive Lawyers Limited to act on his behalf in these proceedings shortly before the first CMD on 3 October 2018.  CMDs took place on 3 October 2018 and 20 November 2018.  On 29 October 2018 the claimant’s representative indicated by email that the claimant proposed to amend his claim.  This was stated in the context of requesting an extension to the deadline in the Order of the tribunal that the parties provide an agreed list of issues by 31 October 2018.  

16.	A direction was given to the claimant’s side by email from the tribunal dated 6 November 2018 that the claimant set out in writing the proposed amendment to the claim.  That proposed amendment document is dated 18 December 2018.  The paragraph numbers referred to below in this decision relate to the paragraphs in that document.
17.	The respondent served a Notice for Additional Information in relation to the proposed amendment to the claim form and Replies were served in that regard on 28 January 2019.

18.	The claimant had had the benefit of legal advice from Mr Martin of Proactive Lawyers Limited from approximately October 2017 in relation to the claimant’s commercial dispute with the respondent.  That dispute related to the alleged ousting of the claimant from the respondent and resulted in High Court proceedings being issued by the claimant on 21 March 2018 (that is 17 days after the ET1 was presented to the tribunal).  The High Court proceedings included an application for an injunction by the claimant.  In evidence at the PHR the claimant confirmed that he was aware at that stage of the extent of his allegations that he had made disclosures to the respondent.

19.	The claimant then sought advice from a solicitor in that firm (Mr Martin) in or around March 2018 when he was about to lodge his claim to the tribunal.  The claimant averred that Mr Martin told him at that point that as he was not an employment lawyer he could not provide advice.  The claimant then went ahead and completed the claim form himself as he stated that he had no money to fund any other representative.

20.	On the morning of the PHR both counsel had discussions in order to narrow the issues of dispute between them.  Mr Phillips stated that his instructions were that the respondent did not contest several of the categories of amendment but was clear that the respondent did not consent to the amendment of those categories but left it to the tribunal’s discretion.  The focus of the respondent’s contention was in relation to paragraphs 4(i), 4(iii), 6(iv) and paragraph 10 in its entirety.  Mr Anderson’s submissions were that several of the categories of amendment (referred to below) could be taken out of the request to amend.

21.	Using the paragraph numbering in the proposed amendment to the claim form document the decision of this tribunal is as follows. 

22.	Paragraph 1.  This is an outline of the headings of the amendment and insofar as it was part of the application I decline it as it is unnecessary given the decision on the following specific paragraphs.

23.	Paragraph 2 is a preamble and for the reasons set out in relation to paragraph 1 I decline any application to amend.

24.	Paragraph 3 was agreed by the parties to amount to background information.  Insofar as I must decide on this paragraph I agree to the amendment.

25.	Paragraph 4(i)  (which in the amendment refers to a failure by the board to meet as a quorum to discuss the claimant’s dismissal based on a decision to cover up actions and poor governance) was clarified in the Notice and Replies as follows:

		Notice:

		“In relation to the allegation that there was a decision by Deirdre Terrins, Andrew Marsden and Ronnie Geddis to “cover up actions and poor governance” please state:
		(a)	When it is alleged this decision was made.

		(b)	Please provide full particulars of each and every “actions and poor governance” which the Claimant is referring to including:
		
			(i)	the identity of each and every person responsible for each and every act referred to;

			(ii)	the date or approximate date when it is alleged that each and every act occurred.”

		Reply:

		“4	(a)	This is a matter of evidence

			(b)	This is set out in Board Minutes, emails and letters which form part of the discovery provided by the Claimant.  The Claimant was not party to this meeting but will give evidence as to the fact that the group did not wish it disclosed.  See discoverable board minutes and letters/emails.  The executive members did not support the Claimant at votes but where generally passive in the face of the situation.”

26.	None of the clarification of this aspect of the amendment in Replies nor in evidence alludes to the claimant having raised issues of wrongdoing.  I therefore find it does not amount to a relabelling of a claim already made nor does it amount to particularisation of an existing claim and time limit issues therefore apply.  It is for the claimant to make the necessary link between the claim in the claim form and the proposed amendment and he has failed to do so.  The focus of the claim form was on Ms Terrins’ alleged behaviour in relation to comments and removal of payments to the claimant.  The email which mentions ‘whistleblowing’ does not allude even in a general way to adverse treatment following the raising of concerns by the claimant.  For the reasons set out below in relation to paragraph 10, the claimant has not persuaded me that it was not reasonably feasible for him to bring this aspect of the claim in time and I also decline to extend time for the reasons set out below.

27.	Paragraph 4(ii) was not contested by the respondent and I allow the amendment.

28.	At Paragraph 4(iii) this was clarified in Replies as follows:

		Notice:

		“Please provide full particulars of all “actions the Claimant found abhorrent as a director and therefore could not accept” including the date of each and every action and the identity of the person who carried out each and every action referred to.”

		Reply:

		“The bullying continued after the Claimant had left the company with board members then reaching out to future employer Gary McCausland with messages The lack of reporting of events to shareholders by the board, the lack of documentation around actual board events (all boards minuted by Angela Reavey and summarised minutes as signed off by Andrew Marsden) the failure of the board to disclose the basis of valuations to the claimant and other shareholders, the devaluing of the company by the board.”

29.	According to the Replies the actions referred to occurred after termination of the contract and cannot therefore be relevant to a claim of constructive dismissal.  I therefore refuse the amendment in this regard primarily on grounds of relevance.

30.	At paragraph 5 it was not contested as it was agreed that the point made is implicit in a constructive dismissal case.  I therefore allow the amendment.

31.	At paragraph 6 this section relates to the bullying and harassment claim.  As the claimant in Replies and at hearing confirmed that this section relates to the claim of constructive dismissal, Mr Phillips stated that he agreed that it appeared that paragraphs (i), (iii) and (v) constitute expansion on matters already contained in the claim form.  

32.	Paragraphs 6(i), 6(ii) and 6(iii) I am satisfied that it is appropriate to allow amendment in relation to paragraphs 6(i) and 6(ii) as they constitute particularisation of a claim already made.  Paragraph 6(iii) does not constitute a complaint it simply states a consequence of the alleged treatment.  This was the agreed position and on that basis I allow the application for amendment.

33.	Paragraph 6(iv) was in issue between the parties.  This paragraph was clarified in the Replies as follows:

		“11	(a)	7th June 2018 – The owner of Limitless received a letter.  There was also various verbal communications with Deidre Terrins.

			(b)	Letter was sent threatening clients IP.  This threat was sent from Directors and was designed to harm Claimant’s future career.  This resulted in Claimant being removed as a director.

			(c)	7th June 2018.

			(d)	Appointed 3rd May 2018.”

34.	This matter relates to actions which took place after the claimant left the respondent and related to his position in another company.  Mr Anderson agreed his was the case and stated he was therefore “neutral” on whether the claim might be amended in this regard.  These allegations are therefore not relevant to a claim of constructive dismissal as they post-date the date of dismissal.  I therefore refuse to amend the claim in that regard on grounds of relevance as they cannot have contributed to a breach of contract leading the claimant to resign. 

35.	At paragraph 6(v) the claimant in evidence clarified that these allegations post-date the termination and the amendment is therefore refused because it is not relevant to the claim of constructive dismissal.

36.	At paragraph 7 this repeats the point made at the beginning of paragraph 6 and insofar as it requires a decision on amendment I hereby grant the application to amend.

37.	At paragraph 8 this relates to the claim for unlawful deduction from wages.  Paragraphs (i), (ii) and (iv) constitute particularisation of issues contained within the claim form.  The respondent did not contest the application to amend in this regard and I hereby grant the amendment on grounds that it is an appropriate particularisation of the claim.

38.	Paragraph 8(iii) relates to a period after the claimant left the respondent and after the ET1 was lodged and Mr Anderson stated that the request for an amendment could therefore be struck out.  I therefore reject the application to amend in relation to that paragraph.

39.	At paragraph 9 this is a reiteration of a point made in the claim form and insofar as it is necessary to grant the amendment I hereby grant it.

40.	Paragraph 10 relates to a claim for whistleblowing particularised in five sub-paragraphs.  This aspect of the amendment was the most keenly disputed amendment.  The whistleblowing claim was raised in the email (set out at paragraph 14 of this decision) and was sent the day after the claim form was submitted and it made reference to the claimant’s belief that he was dismissed because he “proposed” to whistleblow.  The detail given in the proposed amendment relates to:

	(a)	Allegations of alleged protected disclosures which the claimant stated he raised in January 2017 and on a regular basis in relation to a named individual being paid commission and attendance fees when that individual was not entitled to them;

	(b)	On the commission point the claimant clarified at hearing the precise point being made namely that he had raised concerns that Invest NI funds were allegedly inappropriately used to pay unearned commission;

	(c)	The claimant stated that he made a disclosure to the Board in January 2017 about being asked to sign off payments when he was not happy with them;

	(d)	The claimant also stated that he had repeatedly made verbal disclosures in this regard to a named individual between August and November 2017; and 

	(e)	That the claimant had made a disclosure to an individual and to Invest NI during the period of his employment.

41.	The issue for this tribunal is whether or not the detail given above constitutes; (i) a relabelling or particularisation of a claim already made in the claim form (involving no time limit issue) or (ii) whether it constitutes a new claim or involves entirely new factual allegations changing the basis of the existing claim (involving time limit issues).

42.	Having considered the authorities I am not satisfied that the amendment constitutes a relabelling of facts already made.  I am also not persuaded that this constitutes particularisation of a claim already made.  The focus of the claimant’s complaint in his claim form, augmented by the email, was on Ms Terrins and on an allegation that his resignation amounted to constructive dismissal due to an adverse reaction to his proposal to whistleblow.  There is no reference to the claimant having made disclosures before termination.  The proposed amendment relates to a much wider group of people and to a longer period and to entirely different issues being raised which cannot be said to fit them in the wording in his email namely that he was sacked because he proposed to whistleblow.  The comments of Mr Justice Elias in the Foxton’s case sets out at paragraph 8 above are apposite in this case as the claimant has failed to demonstrate in the ET1 a causal link between any actual act of whistleblowing and his dismissal.

43.	As the proposed amendment changes entirely the factual basis for any whistleblowing claim and as it is not a relabelling or particularisation case, issues of time limits arise.  

44.	The test for extending time is whether or not it was reasonably practicable for the claimant to include the claims and allegations in his claim form.  It is for the claimant to show that it was not reasonably feasible to include this aspect of his claim in some way.  I am not satisfied that the claimant has discharged that burden in circumstances where he had a lawyer instructed in relation to associated commercial proceedings; he knew, or ought to have known that he could obtain advice from a lawyer or from another source; the claimant is an articulate individual and yet he chose to go ahead to provide the little information which he did.

45.	It was clear to me from the documentation and from the claimant’s evidence that the claimant is an articulate intelligent individual.  He had access to legal advice at the time and knew that he could source advice either from lawyers or he could alternatively have sought advice from other sources some of which were free.  Even without obtaining advice it is my assessment that it was reasonably feasible for the claimant to have alluded in some way in his claim to a number of disclosures of alleged wrongdoing to a number of different individuals and to an outside body before the termination of his employment.

46.	The claimant was clear in his evidence that, in the claim form when he ticked the box claiming “unfair dismissal (including constructive dismissal)” whilst he did not understand the term ‘constructive dismissal’ he was clear that he understood at the time he lodged his claim that he was alleging that the reason he was resigning was because of treatment he had received during the period leading up to his resignation.  

47.	The claimant in hearing referred to his autism which had been alluded to by his lawyers at a Case Management Discussion.  Despite referring to this condition, both the lawyers and the claimant repeatedly disclaimed reliance on it.  The claimant’s evidence in this regard was that he was diagnosed when he was 14 and attended a psychiatrist and psychologist in the past.  At the time relevant to these proceedings the claimant stated that he had not been in attendance with any doctor.  No medical evidence was produced before me despite this point being canvassed by me with the claimant’s representatives both at the outset of the PHR and at a previous Case Management Discussion.  The claimant also stated in evidence that he did not blame his autism for any failure to refer to this aspect of his claim as he stated that he is usually fine in everyday activities.

48.	Whilst the claimant referred in evidence at the PHR to his mental state at the time he lodged his claim form, he was at the same time able to instruct lawyers in relation to issuing a Writ for damages and an injunction at the same time.  No reason was given to me for that firm not coming on record until the beginning of October 2018 and no reason was given for the further delay until 29 October 2018 when the amendment was proposed by the claimant’s representatives.

49.	I reject the contention that it was not reasonably practicable for the claimant to lodge the claim in time.  I also find that the claimant did not raise the amendment issue within a further reasonable period after the expiry of the time limit.

50.	I therefore refuse to extend time and reject the application for the amendment at paragraph 10 in its entirety.

51.	At paragraph 11 this paragraph makes the claim that the claimant was bullied and harassed and that that ultimately resulted in termination of his employment.  I am satisfied that in the claim there already is a claim for dismissal connected to a proposal to whistleblowing.  What I am not satisfied about is that that claim should include a claim of detriment during employment nor that the specific instances led to his dismissal on grounds of having whistleblown as he is simply out of time to make those claims.  

52.	At paragraph 12 this is a request in relation to remedy and insofar as it is necessary to amend the claim I allow that amendment.

SUMMARY

53.	I considered the proposed amendments in light of the authorities and in light of the guidance set out in the Abercrombie case by Underhill LJ referred to at paragraph 6 above.  In relation to the proposed amendment to the whistleblowing case in particular, it weighed heavily with me that the scope of that claim would widen considerably both factually and legally by the addition of a new claim of detriment pre-dismissal.  The scope of the evidence required for the dismissal claim would also as a consequence widen considerably and no satisfactory explanation was given to me for the evident delays nor for the failure to articulate, even in summary form, such claims in the claim form.  The claimant therefore failed to persuade me that I should exercise my discretion in favour of amendment.  For the reasons set out above I also reject the other proposed amendments.  The amendments which have been permitted are set out above.

Employment Judge:

Date and place of hearing:	5 February 2019, Belfast.

Date decision recorded in register and issued to parties: