THE INDUSTRIAL TRIBUNALS

CASE REF:	885/15

CLAIMANT:			Natasha McKeown	

RESPONDENTS:		1.	Darkley and District Community Association Ltd
				2.	Carepoint NI Ltd		

DECISION ON A PRE HEARING REVIEW
1.	The claimant’s application to amend her claim to include a claim of unfair dismissal on grounds of being a part-time worker is refused.
2.	The claimant’s application to amend her claim to include a claim of breach of contract is granted.

Constitution of Tribunal:
Employment Judge:	Employment Judge McCaffrey	
Members:			

Appearances:		
The claimant was represented by Mr McCamley, Paralegal of Patterson Rock Solicitors.
The respondents were represented by Mrs D Conlon and employee of the second named respondent.

ISSUES

1.	This pre hearing review was convened to deal with an application by the claimant to amend the claimant’s claim to include a claim of unfair dismissal and breach of contract (wrongful dismissal).  

2.	It is relevant to set out some of the prior history of this matter.  The claimant’s employment with the respondents ended on 16 February 2015.  There was a dispute about the exact circumstances and whether she was dismissed or resigned, but it is clear that her employment ended at that date.  The claimant’s employment with the respondents had commenced on 18 December 2014 and she did not therefore have one year’s service at the date when her employment ended.

3.	The claimant lodged a claim with the Office of the Tribunals on 5 May 2015 in which  she ticked the boxes alleging that she had been constructively dismissed, and had suffered discrimination on grounds of age, sex and part-time working.  Paragraph 7 of her claim form which set out her claim is unclear and imprecise but has included the sentence, 

	“Deirdre Conlon in particular has discriminated against me.  I believe this is mostly because I could only commit to part-time working.”

4.	The response form lodged by the respondents denies that the claimant had been dismissed, denied a number of the other allegations made by the claimant and specifically denied any type of discrimination on the part of the respondent.  In relation to the part-time working issue, they note that the claimant applied and was employed as a part-time worker not full-time.  

5.	At a Case Management Discussion on 3 August 2015 the Vice President noted that the claim was completed “without legal assistance” and said it was extremely difficult to understand.  He noted his concern that although the respondent had lodged a response they had operated on largely guess work and that the response may or may not be a response to the claim articulated.  He therefore directed that the claimant should provide a detailed list of each and every alleged act of unlawful discrimination and each and every act of a repudiatory breach of contract alleged in the claim form.  He specifically stressed that this was not an opportunity to expand the claim and that the acts detailed must be the acts raised in the current claim form.  

6.	Following this the claimant’s representative set out several type written pages of allegations which included allegations of detriment suffered due to part-time working and wrongful dismissal.  Specifically the claimant alleged that she had been unfairly constructively dismissed on the basis of Article 140(1) and 140(3)(l) of the Employment Rights (NI) Order 1996 (“the 1996 Order”) which effectively changes the qualifying period to bring a claim of unfair dismissal from one year to one month if the claim has been brought under Regulation 7 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 (“the 2000 Regulations”).  Regulation 7 provides as follows:-

	“7(1)  	An employee who is dismissed shall be regarded as unfairly dismissed for the purposes of Part XI of the 1996 Order if the reason (or if more than one, the principal reason) for the dismissal is a reason specified in paragraph 3.

	(2)	A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on a ground specified in paragraph (3).

	(3)	The reasons or, as the case may be, grounds are –

(a)	That the worker has – 

(i)	 Brought proceedings against the employer under these Regulations:
(ii)	 Requested from his employer a written statement of reasons under Regulation 6; or
(iii)	 Given evidence or information in connection with any such proceedings brought by any worker; or
(iv)	Otherwise done anything under the Regulations in relation to the employer or any other person; or
(v)	  Alleged that the employer had impinged these Regulations or
(vi)	Refused or proposed to refuse to forego a right conferred on him by these Regulations, or 

(b)	That the employer believes or suspects that the worker has done or intends to do any of the things mention in sub-paragraph (a) ...”

7.	It was the claimant’s representative’s contention that they relied on Regulation 7(3)(vi) i.e. that the claimant had been dismissed because she had refused or proposed to refuse to forego a right conferred on her by the Regulations.  He was unclear as to exactly what this right was except that it was the right not to be less favourably treated than a full-time worker.

8.	As regards the claim of breach of contract (wrongful dismissal), the claimant alleged that comments made to her by Mrs Conlon around the time her employment ended and in particular her allegation that Mrs Conlon had required to her to come to a meeting “immediately” was a fundamental and repudiatory breach of contract.

RELEVANT LAW

9.	In the case of Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore [1996] ICR 836 Lord Justice Mummery gave guidance in relation to the issue of amendment of claims before an Industrial Tribunal.  His comments remain relevant today.  He said as follows:-

	“(4)	Whenever the discretion to grant an 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.  

	(5)	What are the other relevant circumstances?  It is impossible and undesirable to attempt to list 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 additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other, the making of entirely new factual allegations which change the basis of the existing claim.  The tribunal have to decide whether the amendmens sought is one of the minor matters or is a substantial alteration pleading the cause of action.  

(b)	The applicability of 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 e.g. in the case of unfair dismissal, Section 67 of the 1978 Act.

(c)	The timing and manner of the application.

(d)	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 might be made at any time – before, at, even after the hearing of the case.  Delay in making the application is however is 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 on discovery.  Whenever taking any factors into account, the paramount considerations are the relevant injustice and hardship involved in refusing or granting an amendment.  Questions of delay, as a result of adjournments, and additional costs, particularly in they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”  

10.	Harvey on Industrial Relations and Employment Law notes at Division P1 paragraph 311.04 that a distinction may be drawn between (1) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint; (2) 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 (3) the amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.  Harvey also notes at Paragraph 312.01 that as far as category 2 is concerned, the tribunals and courts have always shown a willingness to permit a claimant to amend to allege a different type of claim provided that this can be justified by the facts set out in the original claim.  This is usually described as “relabeling” facts already pleaded.  This is also relevant in relation to the issue of time limits, because if the new claim arises out of facts that have already been pleaded in relation to the original claim, the proposed amendment will not be subject to scrutiny in respect of time limits but will be considered under the general principles applicable to amendments summarised in Selkent.  Harvey notes that it is only in respect of amendments falling into category 3 i.e. entirely new claims unconnected with the original claim as pleaded, that the time limits will be required to be considered.  The tribunal must then consider whether the new claim is in time, and if it is not, whether the time should be 

extended to permit it to be made.  In that situation the usual principles in relation to extension of time for claims will be relevant.  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 claims set out in the original application to see if it provides a “causative link” with the proposed amendment of the claim.   

11.	In relation to the factors to be considered when granting an extension of time for lodging a claim, the EAT has suggested in British Coal Corporation v Keeble [1997] IRLR 336 that a tribunal may take into account the factors mentioned in Section 33 of the Limitation Act 1980 which relates to the exercise of discretion to extend time by the courts in Personal Injury Claims.  The court should consider the prejudice that each party would suffer as a result of the decision to be made and also take regard of all the circumstances in the case particularly (a) the length of and reasons for the delay, (b) the extent to which the cogency of the evidence is likely to be affected by the delay, (c) the extent to which the parties sued had co-operated with any requests for information, (d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action and (e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.  

12.	It was also relevant to note that under the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (as amended) the overriding objective set out in the regulations is to deal with cases justly.  This includes (see Regulation 3(2)) so far as practicable ensuring that the parties are on an equal footing, dealing with the case in ways which are proportionate to the complexity or importance of the issues, ensuring that the case is dealt with expeditiously and fairly and the expense.  

REASONS AND DECISION

13.	In this case it appears to me on considering the initial, rather haphazard claim form that it was not carefully and properly drafted.  The claim form is hand written some of the comments made in it are not clearly set out, but the form was sent to the Office of the Tribunals under cover of a letter from the claimant’s solicitors and the claim form includes their name and contact details as her representative.  When Mr McCamley was asked about this, he agreed that the claim form had been prepared with the benefit of legal advice.  When he was asked about the reasons for the application for amendment and why this had only come up at this stage, it was his assertion that the application for amendment had been made promptly and expeditiously.  He also asserted that the two claims concerned mainly unfair dismissal on the basis of having asserted rights under the part-time workers legislation and secondly, wrongful dismissal had been “flagged up” by the facts pleaded in the original claim form.  He said frankly however that the potential claim under the part-time workers legislation had not been appreciated when the original claim form was lodged and that it was only on taking further instructions from the claimant after the first Case Management Discussion in August 2015 that it was appreciated that there may be a claim under this legislation.  I noted that no application to make a formal amendment to the claim form had been made until the further Case Management Discussion on 14 October 2015.  At this CMD, the respondents’ representative pointed out that the claimant had raised additional claims not raised in the original claim form and the claimant’s representative indeed acknowledged that in the original claim form the claimant had not made a claim of unfair dismissal or breach of contract.  It was only then that an application to amend the claim form was made.

14.	I take the view the claim of unfair dismissal on the basis of having asserted rights under the part-time workers legislation is very clearly a new claim.  At the hearing, Mr McCamley shifted ground again by suggesting that the claim made out by the claimant was on the basis that the claimant could not attend the meeting called by the respondents due to her child care responsibilities which in turn were due to her part-time workers status.  This was not the case made out by the claimant in the claim form or indeed in the amended claim lodged with the tribunal on 20 August 2015.  It appears to me that this is effectively a new head of claim.  

15.	I have to consider all the circumstances in which the amendment application is made, including the time limit.  This is a case where the claimant had the benefit of legal advice before she lodged her initial claim.  Mr McCamley said frankly that it has not been appreciated when that claim was lodged that the claimant might have a claim under the Part-Time Workers Regulations.  It is well established that ignorance of the law is no defence.  The claimant had sought legal advice, and it was for her advisers to give her proper advice in relation to her claim.  The merits of that claim as now alleged by Mr McCamley are not something which I need to consider.  I do however have to take account of whether it was reasonably practicable for the claimant to lodge her claim within the appropriate three month time limit and whether she took all steps as were reasonable to lodge the claim expeditiously once she was aware of it.  I believe that it was reasonably practicable for the claim to be lodged in time.  Given that the claimant had the benefit of legal advice in April, when her claim was drafted and the issue of an amendment was not raised until August, I do not accept that the claimant took all reasonable steps to lodge the claim expeditiously.  I am not persuaded that the time limit should be extended in relation to the part-time workers claim.  First, of all the claimant had the benefit of legal advice when her claim was lodged in time.  Secondly it is not at all clear to me what the basis for the part-time workers claim is, given that it appears to have shifted twice from the original basis pleaded in the claim form to the amended claim as set out on 20 August to the submissions made by Mr McCamley before me.  It is however also clear to me that before a claimant can claim unfair dismissal under Regulation 7 of the Part-Time Workers Regulation, he or she must show that they have already carried out a “protected act” under Regulation 7(3).  It is not at all clear to me that any protected act is claimed in the claim form, or indeed in the proposed amendment.  

16.	In relation to the claim of wrongful dismissal and breach of contract, the merits of this claim will obviously be explored at the full hearing of the case.  However the claimant did at least claim constructive dismissal in her initial claim form.  The initial claim form also refers to an alleged ultimatum given to the claimant by the respondent, which the claimant claims was so fundamental in nature as to allow the claimant to treat the contract as repudiated.  It will clearly be a matter of evidence for the tribunal hearing the case to decide whether or not this is the case, but I am satisfied that this element of the claim was made out in the initial claim form and so the claim of breach of contract, namely “wrongful dismissal”, should be included and 

	the amendment permitted as a relabeling of the claim of constructive dismissal.  On that basis I grant the claimant’s application to include a claim of wrongful dismissal as part of her claim but refuse the application to include a claim of unfair dismissal on the basis of having asserted rights under the Part-Time Workers Regulations 2000. 

Employment Judge:

Date and place of hearing:  28 October 2015, Belfast.

Date decision recorded in register and issued to parties: