THE INDUSTRIAL TRIBUNALS

CASE REF:	11/09

CLAIMANT:			Claire Frances Paine

RESPONDENT:		Sensor Systems Watchman Ltd

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

(i)	the claimant’s claim form presented to the tribunal on 24 November 2008 and accepted by the tribunal, as set out in the tribunal’s letter dated 7 January 2009, did not include a claim of sex discrimination;

(ii)	the claimant is given leave to amend her said claim form; and it is ordered to be so amended, to include a claim of sex discrimination, insofar as it relates to a claim that she was the subject of a discriminatory dismissal, on the grounds of her pregnancy/maternity, contrary to the Sex Discrimination (Northern Ireland) Order 1976;

(iii)	the respondent is given leave to amend its response presented to the tribunal on 3 February 2009, within 21 days of the date this decision is registered and issued to the parties, to enable it to respond, insofar as necessary and appropriate, to the amendment of the claimant’s claim, as set out above;

(iv)	the claimant’s claim, as now amended, will now be listed, in accordance with the normal practice of the tribunal, for a Discrimination Case Management Discussion, to enable the tribunal to give necessary and appropriate case management directions/ orders prior to the listing of the substantive hearing in this matter.

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

Appearances:
The claimant appeared in person and was unrepresented.
The respondent was represented by Ms J White, Solicitor, of Arthur Cox Northern Ireland, Solicitors.

Reasons

1.	This pre-hearing review was arranged to consider the following issues:-

(1)	Whether the claimant’s claim form presented to the tribunal on 24 November 2008, includes a claim of sex discrimination, in whole or in part, as set out in the claimant’s letter to the tribunal dated 22 March 2009.

(2)	If not, whether the tribunal should make an order giving leave to the claimant to amend her claim to include a claim of sex discrimination, in whole or in part, as set out in the claimant’s letter to the tribunal dated 22 March 2009; and, if so, whether it should make any further or any other consequential case management directions/orders.

1.2	The parties agreed to short notice of this hearing and to determination of the application by a Chairman Sitting Alone.

2.1	The claimant presented a claim to the tribunal on 24 November 2008.  By letters dated 7 January 2009, the parties were notified by the tribunal that the said claim had been accepted.  There is no dispute that the claim form included a claim of unfair dismissal.  However there is now an issue between the parties whether the said claim form, included a claim, in whole or in part, of sex discrimination.

2.2	Following receipt of the claim form, the respondent on 3 February 2009 presented a response to the claimant’s said claim.  In the said response form the respondent denied, inter alia, that it unfairly dismissed the claimant.  I concluded, from the respondent’s response form and also from the submissions made to me by the respondent’s representative at this hearing, that the respondent at no time considered that the claimant’s claim included any claim of sex discrimination.  I also concluded when considering the claim which was accepted by it and the response provided by the respondent to the said claim, the tribunal did not treat the claim by the claimant as including a claim of sex discrimination.  

2.3	In the claim form presented by the claimant to the tribunal, she ticked the box in Paragraph 7.1 of the claim form indicating that she was making a claim of unfair dismissal.  She did not tick the box indicating that she was wishing the tribunal to consider a claim of sex discrimination.  However, it has been well established that, failure to tick the various boxes in Paragraph 7.1 of the claim form, is not determinative of the type of claim that is made by a claimant; and it is always necessary for the tribunal to consider the whole of the claim form and, in particular, the matters set out in the details of the said claim (see further Grimmer  v  KLM Cityhopper [2005] IRLR 596).

In Paragraph 6.4 of the claim form the claimant stated:-

“I was made redundant upon returning from maternity leave, I was led to believe that the whole accounts function was being made redundant.  This has not been the case as the person covering my job on maternity leave is still there doing the same job, - no redundancies have happened, even though I was told there was no job for me.”

In addition, in Paragraph 7 of the claim form the claimant also stated:-

“ … it is unlawful because I was forced out by them telling me and making me believe that my job was going even though this was never the case.  I should still be there doing which I had done for six years.  Just because I took nine months off on maternity this shouldn’t mean I don’t have a job to come back to.”

I was informed by the claimant, during the course of her submissions, that she drafted the claim form herself and it was not drafted by the legal representative named by her on the form nor was it drafted on the basis of any detailed advice from the legal representative named on the form, nor was it approved by the legal representative before it was presented to the tribunal.  Ms White fairly acknowledged that she could not dispute what the claimant had submitted in relation to the above matters.  However, it was also apparent from what the claimant submitted to me, and as set out in her letter of 22 March 2009, to which further reference will be made below, she recognised that the claim, as drafted by her, was only intended to be a claim of unfair dismissal and, at that time, she did not know she might also have a claim of sex discrimination, on the basis of the above matters set out in the claim form.  In such circumstances, she agreed, in the course of her submissions, she had not ticked the box of sex discrimination.

The matters set out in the claim form, as indicated above, are clearly relevant to a claim of unfair dismissal in themselves; but could also be of relevance to a claim of sex discrimination, if made, insofar as any such claim relates to a discriminatory dismissal of the claimant by the respondent, pursuant to the Sex Discrimination (Northern Ireland) Order 1976, on the grounds of her pregnancy/maternity.  In view of what the claimant, fairly and frankly stated to me, as set out above, I therefore do not think it is possible to conclude that the claimant, in drafting her claim form, intended it to include a claim of both unfair dismissal and sex discrimination.  Further in her letter dated 22 March 2009 to the tribunal, she began the said letter:-

“I wish to ask if I would be allowed to add a jurisdiction of sex discrimination order to my case”;

and concluded the said letter by stating:-

“I will be grateful if you could consider letting me add this jurisdiction to my case.”

In light of the foregoing, I therefore came to the conclusion that the said wording, to which I have made reference above, in her said claim form is not sufficient in itself to include a claim of sex discrimination.

2.4	However, that is not the end of the matter.  It was therefore necessary for me to consider the claimant’s application for leave to amend her said claim to include a claim of sex discrimination in whole or in part, as set out in her letter to the tribunal dated 22 March 2009.  

2.5	In the claimant’s letter of 22 March 2009, the claimant sought to include a claim of sex discrimination insofar as it related to a claim that she had been the subject of a discriminatory dismissal on the grounds of her pregnancy/maternity, contrary to the Sex Discrimination (Northern Ireland) Order 1976.  Insofar as the claimant, in her said letter, claimed that she had been the subject of such a discriminatory dismissal, there is clearly overlap with the matters relating to her unfair dismissal claim, already set out in the claim form; albeit it sets out the matter in greater detail, than in her claim form.  However, in addition, in her said letter the claimant referred to various other matters, which occurred during the course of her employment, which do not relate to the dismissal itself; but might also be argued to ground a claim of sex discrimination.  The claimant accepted, at this hearing, that she was not seeking to make a claim of sex discrimination to be determined by the tribunal, in relation to these additional matters set out in her said letter; but rather wished to rely upon them, if the application to amend was granted, to support her said claim relating to her said discriminatory dismissal (see further Anya  v  University of Oxford [2001] IRLR 377).  In these circumstances, it is not necessary for me to consider, for the purposes of this hearing, these said additional matters referred to by the claimant in her letter of 22 March 2009.

2.6	Since the claimant’s claim of sex discrimination relates to a discriminatory dismissal only, it does not require to be the subject of the statutory grievance procedure (Lawrence  v  HM Prison Service [2007] UKEAT/0630/06).  The claimant was unable to produce any written document sent by her to the respondent, which would have satisfied the statutory grievance procedure.  If it had been necessary for the claimant to have brought a grievance under the statutory procedures, I would have had to consider this issue further in determining whether to exercise my discretion to allow the amendment, since a failure to follow the statutory procedure, when required to do so, would be a bar to bringing a claim to the tribunal (see further Blackstones Employment Practice 2009 Paragraph 3.99 and Employment Court Practice 2008 Paragraph 4-126).

2.7	As Harvey on Industrial Relations and Employment Law Volume 5 Section T Paragraph 311.03 m akes clear a distinction may be drawn between:-

(i)	amendments which are merely designed to alter the basis of an existing claim, but 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 of cause of action which is not connected to the original claim at all.

I am satisfied that the claimant’s application for leave to amend the claim form to include a claim of sex discrimination, insofar as it related to a discriminatory dismissal on the grounds of her pregnancy/maternity, contrary to the Sex Discrimination (Northern Ireland) Order 1976, falls within the second category, referred to above.  If the application is granted then it amends the claim form, which was presented by the claimant on 24 November 2008.  Harvey also confirmed in considering the said application, it is not necessary to subject the proposed amendment to scrutiny in respect of the time-limits for bringing any such a claim (but see later Paragraph 2.10 of this decision).  Whether, in such circumstances, an application to amend should be granted, requires to be determined under the general principles applicable to amendments, as summarised in the case of Selkent Bus Company Ltd  v  Moore [1986] ICR 836 (Mummery J, as he then was, presiding).  These include consideration of the nature of the application itself, ie whether it is minor or substantial, and the timing and manner of the application.  However, Mummery J emphasised that an application should not be refused solely because there has been a delay in making it.  He pointed out that there are no time-limits laid down in the Rules for making of amendments, and 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, and he made clear 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.  

2.8	In this matter, it is clearly unfortunate that the claimant, when she was making her claim in November 2008, did not include a claim of sex discrimination.  However, as she indicated above, she drafted the said claim form without the assistance of any legal representative.  Indeed, it was following her legal representative coming off record in March 2009, that she carried out her own researches on the internet and ascertained that it was necessary for her to make an application to amend her claim to include the claim of sex discrimination, as set out in her letter dated 22 March 2009.  As Mummery J in the case of Selkent concluded:-

“The paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment.”

In this matter, the respondent is already required to defend a claim of unfair dismissal and Ms White was unable to suggest any additional prejudice to the respondent, other than having to defend an additional claim.

In the circumstances, I came to the conclusion that, in exercising my discretion, in the circumstances referred to above, the greater injustice and hardship would be to the claimant if she was not given the opportunity to require the tribunal to determine this further claim of a discriminatory dismissal on the grounds of her pregnancy/ maternity, contrary to the Sex Discrimination (Northern Ireland) Order 1976.  I therefore granted the application to amend the claimant’s claim presented to the tribunal on 24 November 2008 to include a claim of sex discrimination, insofar as related to a claim that she had been the subject of a discriminatory dismissal on the grounds of her pregnancy/maternity contrary to the Sex Discrimination (Northern Ireland) Order 1976; and the claimant’s claim is therefore ordered to be so amended.  

2.9	I further ordered the respondent was to have leave to amend its response presented to the tribunal on 3 February 2009, if it wishes to do so, within 21 days of the date this decision is registered and issued to the parties to enable it to respond to the said amendment of the claimant’s claim.  

2.10	For the avoidance of doubt, I must make clear, in reaching my decision to grant the claimant’s application to amend her 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.  Further, I am satisfied the said amendment, as now allowed, relates back to the claimant’s claim, as presented to the tribunal, on 24 November 2008.  If the said claim of sex discrimination, was out of time on that date, the respondent is entitled, in my judgment, to raise any issue of time in relation to that claim.  If the respondent considers the claim of sex discrimination, as now included in the amended claim form, was out of time on the said date then it will be entitled to raise such a defence in the amended response form, referred to above.  Equally, the claimant will be entitled to seek, if appropriate, an extension of time, in accordance with the relevant provisions contained in the 1976 Order.  Already, the respondent has raised an issue of time in relation to the claimant’s claim of unfair dismissal; but the respondent’s representative has agreed that any such issue would require to be determined in the context of a substantive hearing and not at a pre-hearing review.  Similarly, if the respondent decides to raise in the response form, as amended, any issue of time in relation to the claimant’s claim of sex discrimination, then any such issue will also require to be determined in the context of a substantive hearing.  

2.11	As this claim is now a claim of sex discrimination and unfair dismissal, it will require to be listed for a Discrimination Case Management Discussion, in the normal way, to enable the tribunal to give the necessary and appropriate case management directions/orders, prior to the listing of the substantive hearing in this matter.  The parties will be informed in due course of the date and time of any such Discrimination Case Management Discussion.

Chairman:

Date and place of hearing:	15 April 2009, Belfast

Date decision recorded in register and issued to parties: