THE FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 129/06FET
652/06
CLAIMANT: Brian Monaghan
RESPONDENT: Sainsbury's Supermarkets Ltd
DECISION ON A PRE-HEARING REVIEW
The decision of the Tribunal, in regard to the issues listed to be determined, is that the Tribunal determines that the claim of political discrimination was not presented within the specified time limit and that it is not just and equitable, in all the circumstances of the case, for the Fair Employment Tribunal to consider this claim despite the fact that it is out of time. Accordingly, that part of the claimant's claim that consists of a claim of political discrimination is struck out, without further Order, and the remainder of the claimant's claim may now proceed to hearing.
Constitution of Tribunal:
Chairman (sitting alone): Mr J V Leonard
Appearances:
The claimant was represented by Ms McManus, Solicitor, of Donnelly & Kinder, Solicitors.
The respondent was represented by Mr Brett, Solicitor, of L'Estrange & Brett, Solicitors.
REASONS
- By claim form dated 4 April 2006 received by the Office of the Industrial Tribunals and the Fair Employment Tribunal ("the Office") on that date, the claimant's solicitors, Messrs Donnelly & Kinder, on behalf of the claimant submitted a claim to the Industrial Tribunals under cover of a letter dated 4 April 2006. By letter dated 11 April 2006 the Secretary of the Tribunals ("the Secretary") wrote to Messrs Donnelly & Kinder indicating that the claimant's claim relating to constructive dismissal was rejected as the applicable statutory grievance procedure had not been complied with.
- By claim form dated 22 May 2006 received by the Office on 24 May 2006 the claimant submitted a further claim. This was submitted on behalf of the claimant by Messrs Donnelly & Kinder under cover of a letter dated 22 May 2006. That claim form was accepted. A response thereto, dated 29 June 2006 and received by the Office on 30 June 2006, was submitted on behalf of the respondent by the respondent's solicitors, Messrs L'Estrange & Brett.
- By letter dated 21 September 2006 Messrs Donnelly & Kinder wrote to the Office applying to amend the claim to include a claim that the claimant had suffered political discrimination, that claim being linked to alleged bullying and harassment that the claimant claimed to have suffered on account of his stated trade union involvement and his work as a shop steward.
- By letter dated 28 September 2006 Messrs L'Estrange & Brett wrote to the Secretary in respect of the amendment application objecting to that application and pointing out that such a head of claim would take the case as originally framed out of the jurisdiction of the Industrial Tribunals; this was properly a case that ought to have been brought before the Fair Employment Tribunal. The point was made that the claim for alleged political discrimination was out of time.
- By letter dated 26 October 2006 the Secretary wrote to the respective parties indicating that the matter had been accepted as a claim for a decision by the Fair Employment Tribunal. By response to the claim dated 15 November 2006 and received by the Office on that date, Messrs L'Estrange & Brett indicated an intention to defend the claim but stated that there was insufficient detail available to the respondent (as no originating claim had been made to the Fair Employment Tribunal) to allow the respondent properly to complete the response to the Fair Employment Tribunal claim.
- The matter was listed for a pre-hearing review before the Fair Employment Tribunal upon the following issues:-
1. "Was the claim presented within the specified time limit?
2. If not, is it just and equitable, in all the circumstances of the case, for the Fair Employment Tribunal to consider this claim despite the fact that it is out of time."
- The Tribunal was presented at hearing with a bundle of documents consisting of the originating claim form, the responses, and other pleadings in the case. The Tribunal also received an indexed bundle of authorities, and from the claimant's representative, written skeleton arguments. At the outset of the hearing, the respondent's representative indicated to the Tribunal as there was agreement on this point that no issue required to be determined by the Tribunal as to whether or not a claimant who was alleging to have suffered treatment which might be deemed to amount to political discrimination might have his or her case dealt with by the Fair Employment Tribunal; the respondent thus indicated acceptance that the Fair Employment Tribunal did have jurisdiction in matters of political discrimination such as the matters alleged by the claimant in this matter. Accordingly, the Tribunal was able to disregard that part of the skeleton argument that related to the issue on account of the concession in regard to this issue made by the respondent's representative.
- The Tribunal heard no oral evidence in the matter but the Tribunal had the benefit of the oral submissions made on behalf of the respective parties.
THE SUBMISSIONS
- The claimant's representative referred the Tribunal in some detail to the annexure to the claimant's claim form, which annexure ran to some 42 numbered paragraphs. It was submitted that this claim made reference in a number of places to the bullying and harassment alleged to have been sustained by the claimant and a number of specific instances were employed to highlight this. It had been expressly stated, so it was submitted, that there was a nexus between this alleged bullying and harassment of the claimant by members of the respondent's management and the claimant's duties as a shop steward and as a person engaged in trade union activities and there were a number of particularly significant illustrations of this expressly alleged in the claim form.
- For example, paragraph 25 of the claim form stated that on 17 June 2005 the claimant had been involved in recruiting new union members and the respondent's store manager and personnel manager had entered the canteen and had ordered the claimant from the business premises. It was alleged that a heated exchange had taken place in front of other employees which the claimant contended had discouraged potential union members. In another place, paragraph 22, the claim form stated that on 15 June 2005 the claimant's line manager had made remarks about the claimant's trade union activities and had stated, "the union does not pay your wages". In a number of places in the claim form express references had been made to the alleged detriment sustained by the claimant and the alleged linkage between that stated detriment and the claimant's trade union and shop stewarding activities. Thus the claimant's representative submitted that the claimant was not relying on any new facts, but was merely seeking to "put a new label" on facts already pleaded by seeking to present the argument that these facts brought the case within the jurisdiction of the Fair Employment Tribunal.
- The claimant's representative referred the Tribunal to the case of Selkent Bus Company Ltd -v- Moore [1996] ICR 836 and to the judgement of Mummery J (as he then was) in that matter; the Selkent case had established clear guidance to Tribunals concerning amendment applications. This case fell within the second category of amendments, that is to say "putting a new label on facts already pleaded". The Tribunal was invited to follow the guidance in the Selkent case in this regard.
- In response to a question on the part of the Chairman as to why a political discrimination case had not been expressly set out in the claimant's claim form from the outset, the claimant's representative stated that she had personally only taken over carriage of the case in mid-September of 2006. She had at that stage recognised the significance of the apparent omission to expressly mention a claim of political discrimination up to that point. She had immediately taken steps expressly to make such a case by seeking to amend the claim form. She had thereafter (and no argument was made by the respondent's representative in contradiction of this) pursued the case with diligence. If the Tribunal were minded not to grant the amendment nor to accede to the claimant's arguments, substantial hardship and substantial prejudice would thereby be sustained by the claimant being denied the possibility of pursuing his claim before the Fair Employment Tribunal for unlawful discrimination on political grounds. It was argued that that prejudice substantially outweighed any prejudice that might be sustained by the respondent if the claimant's application were to be granted.
- On behalf of the respondent the respondent's representative submitted that the facts as alleged in the claimant's case were entirely denied, as pleaded. If the Tribunal were to look at the relevant dates, it would be seen that the claimant was stated to have left the employment in September 2005 and he had resigned in January 2006. The Fair Employment Tribunal case was made on foot of the letter of 21 September 2006 that had been earlier referred to. That letter was dispatched no less than eight months after the resignation date and indeed one year after the claimant had left the employment.
- The respondent's representative submitted that this was not a case in which it was proper or appropriate to regard the matter as being an application to amend an existing claim. Rather, this was an entirely new case that was endeavoured to be brought before the Fair Employment Tribunal. The Fair Employment Tribunal was a tribunal with an entirely different constitution and exercising an entirely different jurisdiction to that exercised by the Industrial Tribunal. The respondent's representative referred the Tribunal to a copy of an academic paper that contained an extract that was therein stated to be taken from a decision of the then President of the Tribunals in a matter therein identified as being the case of "Cannon -v- Shorts Missile Systems [01667/95 UD]". That is referred to further below.
- It was not proper to regard the Fair Employment Tribunal as some type of "arm" of the Industrial Tribunal. The Fair Employment Tribunal case therefore could not properly arise, as it were, as a result of an amendment to an existing application before the Industrial Tribunal.
- The Chairman suggested that it would be better if the Tribunal were to be supplied with a full report of the case of "Cannon -v- Shorts Missile Systems". The respondent's representative, Mr Brett, undertook to endeavour to secure a copy of that decision. The Tribunal Clerk also endeavoured to locate a copy of the decision which had been referred to in the respondent's submissions. Unfortunately, after appropriate searches had been conducted, a copy of the said decision could not be located and was thus not made available to the Tribunal. Thus the Tribunal was supplied only with a copied extract from an academic paper which had been prepared, so that the Tribunal understands, for the purposes of teaching a course in Employment Law at the Institute of Professional Legal Studies, Belfast. The extract provided by Mr Brett on behalf of the respondent reads as follows:-
"Whilst the Industrial Tribunal and the Fair Employment Tribunal are both situated [at the same address]. … you should note that they are two separate and distinct entities.
This is clearly illustrated by the decision of the former President Mr J E Maguire CBE which was delivered on 9 January 1997 in the case of Cannon -v- Shorts Missile Systems Ltd [01667/95 UD]. The respondent from September 1980 to December 1994 employed C. C was dismissed because of a redundancy situation. C instituted proceedings in February 1995 alleging unfair dismissal. In his Originating Application he denied that he was alleging unlawful discrimination on grounds of religious belief or political opinion.
In May 1995 C applied to amend his claim form by claiming he was unlawfully discriminated against on grounds of religious belief or political opinion.
The amendment was registered as a complaint before the Fair Employment Tribunal and listed for hearing on three preliminary issues.
1. Was the application presented within the specified time limit?
2. If not was it just and equitable in all the circumstances for the FET to consider his complaint?
3. Whether the originating application to the industrial tribunal could be amended to include a claim to the FET?
The FET held that as his employment ceased in 1994 his application to the FET dated in May 1995 was out of time.
The President continued 'The FET is not … a division of the industrial tribunals in Northern Ireland. It is a totally independent tribunal … if the FET has not before it a valid complaint within its jurisdiction on what basis can it proceed to decide to amend that application? It is for those who complain to any tribunal to ensure that they complain to the right tribunal. And if they do not do so in proper time, it is difficult to see why they should not have to justify a late application under the criteria laid down for late applications rather than seek to amend an application which was not made to the correct tribunal'".
- Regrettably, the foregoing extract is the only material available to this Tribunal concerning what is reported to be an extract from the decision of the former President of Tribunals in the matter.
THE APPLICABLE LAW
- The Fair Employment and Treatment (Northern Ireland) Order 1998 ("the 1998 Order") provides the statutory basis for complaints to the Fair Employment Tribunal by any person concerning allegations of unlawful discrimination on the ground of religious belief or political opinion. The provisions of Article 3 of the 1998 Order specify further detail in regard to the definition of discrimination on the prohibited ground in question. Article 38 of the 1998 Order provides that any person may present a complaint to the Fair Employment Tribunal concerning unlawful discrimination. Article 46(1) provides that the Fair Employment Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of:-
(a) the end of the period of three months beginning with the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or
(b) the end of the period of six months beginning with the day on which the act was done.
Notwithstanding the foregoing, Article 46(5) of the 1998 Order provides that the Fair Employment 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 that it is just and equitable to do so.
- The Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 ("the FET Rules") govern applications to the Fair Employment Tribunal. Rule 4 of the FET Rules provides that there shall continue to be a Tribunal, known as the Fair Employment Tribunal for Northern Ireland, established for the purposes of exercising the jurisdiction conferred on it by or under the 1998 Order and that the jurisdiction of the Tribunal shall be exercised by a single Tribunal or, if the President or the Vice-President so directs, by two or more Tribunals. The President or Vice-President shall determine at what time and in what place the Tribunal shall sit. Rules 5 and 6 of the FET Rules provide for the membership and for the composition of the Fair Employment Tribunal. Rule 8 provides for the prescription of appropriate forms for use in Fair Employment Tribunal proceedings. Schedule 1 to the FET Rules provides for the Fair Employment Tribunal Rules of Procedure and these provisions specify the detail of the rules for the commencement and the conduct and management of such Fair Employment Tribunal cases.
- Article 85(2) of the 1998 Order specifies that where the President or Vice-President considers that any matters which would otherwise fall to be determined by an Industrial Tribunal could appropriately be heard and determined by the Fair Employment Tribunal, he may direct that those matters shall be so heard and determined. If such a direction is made under Article 85(2), under Article 85(3) of the 1998 Order the Fair Employment Tribunal shall have in relation to such matters as are the subject of such a direction under Article 85(2) the jurisdiction and it may exercise all the powers of an Industrial Tribunal.
- There is body of case law concerning amendments to claims before the Tribunals. In that regard the leading case continues to be the cited case of Selkent Bus Company Ltd -v- Moore [1996] IRLR 661.
THE TRIBUNAL'S DETERMINATION
- Having heard the arguments in the matter from both sides and having noted the applicable law, the Tribunal notes the argument made on behalf of the claimant that the claimant is not in this matter relying on any new facts; he is merely seeking to "put a new label" on facts already pleaded by arguing that these facts do bring the case within the jurisdiction of the Fair Employment Tribunal. However, the Tribunal further notes the respondent's representative's submission to the effect that the claimant is asking the Tribunal to disregard any distinction between two quite different tribunal regimes; this, the Tribunal cannot do, argued the respondent.
- The Tribunal is therefore being tasked with a determination as to whether or not it is entitled, on the one argument, to treat the amendment application, based as it is on foot of the well-established principles in the Selkent case, as if the two jurisdictions in question involved a facility for the ready transition of any case between the two jurisdictions or whether, on the other argument, the two jurisdictions are entirely separate "tracks" along which any prospective claimant might proceed, with these "tracks" only becoming connected by virtue of the statutory provisions that permit such a direction as can be made under Article 85(2) of the 1998 Order by the President or the Vice-President of the Tribunals.
- There is no doubt that the two tribunal jurisdictions do share a common facility for administrative purposes and a common secretariat. That arrangement is certainly administratively convenient in a relatively small jurisdiction such as Northern Ireland. It is also the case that all full-time Chairmen and a considerable number of part-time fee paid Chairmen are Chairmen both of the Industrial Tribunals and also of the Fair Employment Tribunal, but not exclusively so in regard to the latter. It is further clear that the Fair Employment Tribunal came into existence for quite distinctive and particular reasons arising out of the troubled circumstances of Northern Ireland. In that regard, the institution of the Fair Employment Tribunal sits uniquely within the legal system of the United Kingdom. The Industrial Tribunals, in contrast, have very largely common characteristics to the Employment Tribunals that are to be found in other parts of the United Kingdom. Thus the jurisdiction exercised by the Industrial Tribunals is largely similar to that exercised in other parts of the United Kingdom. Both of these Northern Ireland tribunals spring out of quite distinct statutory provisions and the operation of both of the tribunals is governed by quite distinct rules of procedure.
- The Tribunal cannot therefore effectively disregard the clear and obvious distinction that exists between the two different tribunal regimes, notwithstanding the import of the invitation that is implicit in the claimant's submission which is to the effect that this matter involves merely putting a new label on facts already pleaded. Whilst the Tribunal has heard a quite persuasive argument on the part of the respondent's representative that these are two quite distinct and different tribunal systems which fact cannot be arbitrarily disregarded, the Tribunal has heard no persuasive argument to the contrary on the part of the claimant's representative.
- The conclusion from all of this is that the Tribunal determines that it cannot regard the claimant's complaint of unlawful discrimination on political grounds as being anything other than a fresh claim instituted on foot of the letter dated 21 September 2006 from Messrs Donnelly & Kinder; it is not merely to be seen as constituting an amendment to an existing claim.
- As this is a fresh claim it requires to be dealt with on foot of the foregoing statutory provisions by the Fair Employment Tribunal. As the claim has clearly been presented outside the statutory time limit referred to above, the Tribunal therefore must proceed to determine on foot of Article 46(5) of the 1998 Order whether or not it is appropriate for the Fair Employment Tribunal to consider the claimant's complaint on the basis that, in all the circumstances of the case, it is just and equitable to do so.
- The Tribunal notes the respective arguments that had been made by both sides in the matter. Both in the claimant's written skeleton arguments and in the oral submissions it has been submitted that the amendment application was made as soon as reasonably practicable when it was discovered that the amendment was required. Whilst what might be termed the, "not reasonably practicable", argument differs from the statutory requirement mentioned above which provides that the Tribunal shall consider the interests of justice and equity, nonetheless the Tribunal has paid heed to the claimant's overall submission in that regard. The Tribunal has, further, been invited by the claimant's representative to consider issues such as hardship and injustice which would flow from the granting or the refusal of the amendment sought. The claimant's arguments have of course been based on the Selkent case and the prospect of an amendment to the claim and, as far as the Tribunal reads these, do not appear to countenance arguments based upon the proposition that this is in fact a fresh claim to the Fair Employment Tribunal. However, the Tribunal notes that it is submitted for the claimant that no new facts will be adduced in evidence and that the respondent has already been fully appraised of the claimant's case.
- The Tribunal has had regard to the respondent's argument that this is not to be properly regarded as an amendment application but is indeed a new claim, which claim has been brought substantially out of time, and that it would not be just and equitable to admit the claim, notwithstanding any potential hardship to the claimant, as no substantial grounds for the delay have been put forward on behalf of the claimant.
- The Tribunal is conscious of the fact that it has a substantial measure of discretion in the determination of these applications, the primary consideration being the affording of justice and equity to both parties in proper measure. One factor which requires to be taken into consideration is the reason for the delay and the cause of this. The Tribunal also is entitled to consider whether or not a refusal to exercise the discretion would leave a claimant without any remedy whatsoever or whether, alternatively, there might nonetheless be some redress available to the claimant whose application is refused.
- In this case it appears that the failure to pursue a case before the Fair Employment Tribunal, notwithstanding the content of the application to the Industrial Tribunal, arose from a failure to recognise that the claimant's claim as factually pleaded brought the claim within the jurisdiction of the Fair Employment Tribunal. Up until quite recent times, and until the amendment application was intimated, the respondent had dealt with this case as being an Industrial Tribunal claim claiming unfair constructive dismissal. It is noted that the said letter dated 21 September 2006 from the claimant's solicitors seeking to amend the claim is referable to an originating claim that refers to alleged treatment stated to be subsisting from the latter part of 2004 (or perhaps early 2005) until September 2005 at which latter time the claimant alleges he was absent from work allegedly suffering from work related stress and was unable to return to the working environment up until the time that the claimant tendered his resignation, that is to say on 7 January 2006.
- If the claimant is therefore arguing a continuing course of alleged discrimination subsisting until the date upon which he alleges he was forced to resign, time would seem to run, for the purposes of the alleged discrimination complaint, from 7 January 2006 and to expire three months thereafter. This of course presumes knowledge on the claimant's part as time runs from the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of. This is to be found in Article 46(1)(a) of the 1998 Order. There has been no argument made on behalf of the claimant grounded on Article 46(1)(b) of the 1998 Order bringing into play the alternative time limit of six months and the Tribunal observes no basis for that on the papers. The initiation of the Fair Employment Tribunal complaint therefore on foot of the solicitor's letter of 21 September 2006 is substantially out of time.
- Having heard the arguments, the Tribunal has not been faced with any persuasive argument as to why it would be just and equitable, under the particular circumstances of this case, to consider the Fair Employment Tribunal case which has been brought out of time. This is so notwithstanding that the claimant had at a relatively early stage retained solicitors who were quite capable on the claimant's behalf of intimating a claim for constructive dismissal before the Industrial Tribunals well within the statutory time limit that applied to such a complaint. In reaching its determination the Tribunal has, as it is required to do, considered the balance of hardship to be sustained by the claimant in refusing this application and the converse position of the respondent if it were to be granted.
- Accordingly, in regard to the issues listed to be determined, the Tribunal determines that the claim of political discrimination was not presented within the specified time limit and that it is not just and equitable, in the particular circumstances of the case, for the Fair Employment Tribunal to consider this claim despite the fact that it is out of time.
- This being the case, the Tribunal has no jurisdiction to hear the claim of political discrimination. Under these circumstances, the Tribunal has the power to strike out and to dismiss that part of the claimant's case in respect of which the Tribunal has no jurisdiction. Accordingly, that part of the claimant's claim that consists of a claim of political discrimination is struck out, without further Order, and the remainder of the claimant's claim may now proceed to hearing.
Chairman:
Date and place of hearing: 15 March 2007, Belfast
Date decision recorded in register and issued to parties:
