THE INDUSTRIAL TRIBUNALS

CASE REF:	388/09

CLAIMANT:			Eugene Rogers

RESPONDENT:		Meda Pharmaceuticals UK Ltd

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that:
(A)	The claimant’s claim form, as presently drafted, does not cover a claim of TUPE-related unfair dismissal.
(B)	The claimant is now given leave to amend his claim form, so as to incorporate a contention that, on the basis of the facts already specified in that claim form, there has been a TUPE-related unfair dismissal.

Constitution of Tribunal:
Chairman (sitting alone):	Mr P Buggy	
Appearances:
The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by Worthingtons Solicitors.
The respondent was represented by Ms R Best, Barrister-at-Law, instructed by Starr & Partners LLP.

REASONS

1.	I announced my decision in respect of the above matters at the end of the hearing.  At the same time, I gave oral reasons for those determinations.  Accordingly, what follows is by way of summary only.

2.	In deciding to grant leave to amend the claim form, I took account in particular of the following:

(1)	In my view, there is no difference, or very limited differences, between the evidence necessary for the purpose of addressing the existing claims and the evidence which would be necessary for the purpose of addressing the new claims.

(2)	The application to amend could have been done more promptly, but it has been done well in advance of the main hearing.

3.	The relevant legislation consists of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“the Regulations”).  TUPE-related dismissals are dealt with in Regulation 7.  In effect, Regulation 7 provides as follows:

(1)	Paragraph (1) of Regulation 7 provides that a dismissal is automatically unfair in either of two situations: 

(a)       The reason for the dismissal is the transfer itself. 

(b)   	The reason for the dismissal is a reason which is not an economic, technical or organisational reason entailing changes in the workforce, and is a reason which is connected with the transfer.

(2)    The effect of paragraphs (2) and (3) of Regulation 7 is that a reason connected with the transfer that is an economic, technical or organisational reason entailing changes in the workforce is one of the potentially fair reasons which are referred to in Article 130(1) and (2) of the Employment Rights (Northern Ireland) Order.

4.	Against that background, it seems to me that  leave to amend should be given in the following terms: The claimant may amend the claim form to include a claim that, on the facts already pleaded in the claim form:

(1)	The dismissal is automatically unfair because the principal reason is one of the reasons specified in Regulation 7(1) of the TUPE Regulations.

(2)	Alternatively, the dismissal is unfair, in the sense in which that term is used in Article 130(4) of the 1996 Order, in circumstances in which the claimant has been dismissed for an ETO reason which is connected with the relevant transfer.

5.	The respondent made an application for costs to be awarded against the claimant  in connection with this application for leave to amend the claim form.   My reasons for refusing that application for costs can be summarised as follows.

6.	In the circumstances of this case, I have no power to award costs unless the claimant or his advisors have pursued the claim “unreasonably”.  However, even if that threshold criterion is met, it does not follow that I must or should award costs.  I retain a discretion in that situation, either to award costs, or not to award costs. In deciding  not to award costs, I have taken account of the following.

7.	The main costs in connection with this leave application have been incurred mainly because the application for leave was opposed. 

8.	 I am not in any way criticising the respondent for opposing the application for leave to amend. (Ms Best has skilfully put forward entirely respectable arguments in opposition to the amendment application.  In light of the nature and relative strength of those arguments, it was by no means an inevitability that leave would be granted).  

9.	However, leave was granted and, although costs do not follow the event in tribunal proceedings, the position is as follows. The claimant had asked the respondent to agree to the amendments.  The respondent declined to do so.  This PHR became necessary because of that refusal.

10.	  In my view, in light of the nature of the proposed amendments, and in light of the issues which have already been raised in the claim form as it currently stands, the grant of leave in this instance has neither greatly advantaged nor greatly disadvantaged either party.

Chairman:

Date and place of hearing:		21 September 2009, Belfast.

Date decision recorded in register and issued to parties: