THE INDUSTRIAL TRIBUNALS

CASE REF:  1188/15

CLAIMANT:			Maria McKeith

RESPONDENT:		Ardoyne Association (North Belfast Advice Partnership)

DECISION ON A PRE HEARING REVIEW
The claimant is granted leave to amend her claim form to include the claim which is specified at paragraph 1 below.  

	
Constitution of Tribunal:

Employment Judge (sitting alone):   Employment Judge Buggy

Appearances:

The claimant was self-represented.

The respondent was represented by Mr D Deazley, Solicitor.

REASONS
1.	This was an application by the claimant to amend her claim form so as to include an additional claim, which is as follows:

(1)	The claimant says that an important reason for her dismissal was the fact that she was absent on certain occasions.  

(2)	She says that those absences were necessary because she needed to care for a person who I will refer to as “X”.  

(3)	According to the claimant, X has been a disabled person, within the meaning of the Disability Discrimination Act (“DDA”), at all material times.

(4)	The claimant says that, by dismissing her because of those absences, the respondent discriminatorily dismissed her, that discrimination being “associative” disability-related discrimination and/or associative direct disability discrimination.  

2.	I have decided to grant the claimant leave to amend her claim form so as to include the claim specified in the last preceding paragraph above.  Accordingly, from now onwards, her claim form is to be deemed always to have included that claim.  

3.	The respondent denies that the relevant absences were a reason for the claimant’s dismissal.  The response form is from now onwards to be deemed always to have included such a denial.  

4.	On behalf of the respondent, Mr Deazley made very clear and detailed arguments against the granting of the claimant’s application for leave to amend.  

5.	He supplemented his oral argument with a detailed written submission (“the Submission”), which contained helpful guidance regarding the legal framework within which amendment applications have to be addressed. 

6.	The Submission is a permanent record of the arguments which have been made on behalf of the respondent in relation to this amendment application.  Accordingly, I do not need to refer to all of the arguments which are set out in the Submission.  However, the respondent should be aware that I have carefully considered all of those arguments.  

7.	The claimant was dismissed by the respondent, ostensibly on the ground of redundancy, on 27 March 2015.  She presented her claim form in these proceedings on 25 June 2015.  

8.	In the claim form as originally drafted, she claimed for unfair dismissal “.... as no statutory procedure was followed”.  In that claim form, she also asserted the following:

“I believe the reason given for redundancy of no funding to be untrue.  I feel I was made redundant due to ongoing issues.  I feel that my manager took a dislike to me and took the new funding year as an opportunity to dismiss me.  I feel my dismissal was due to family friendly related issues, as well as my assertion of rights regarding minimum wage and redundancy pay entitlement”.  

9.	The claimant told me that the reference in the claim form, as originally drafted, to “family friendly issues” is a reference to the absences which are referred to in the claimant’s application to amend, and is an implicit reference to the assertion that, as the claimant says, those absences were the result of the need for the claimant to carry out caring responsibilities in respect of X.  

10.	I accept Mr Deazley’s argument that the proposed new claim is not a mere re-labelling of an existing claim or claims.  I accept his argument that the proposed new claim arises out of a factual context which is significantly different from the factual context of the current, or existing, claims.  

11.	In that situation, what I have to do is to consider whether the new claim would be in time if it were to be brought by way of fresh proceedings (as distinct from being initiated as an amendment to existing proceedings).  If I conclude that the new claim would be out of time if it were to be brought during the course of fresh proceedings, I still have a vestigial discretion to allow the amendment.  If, on the other hand, I conclude that the proposed additional claim would be in time if it were to be brought by way of fresh proceedings, I would still have a vestigial discretion to refuse to allow the amendment.  (In this general connection, see Transport & General Workers Union  v  Safeway Stores Ltd (UKEAT/W092/07, especially at paragraphs 10 and 17-21).   

12.	I note that in National Statistics Office  v  Ali [2004] EWCA Civ 1363 (21 October 2004), the English Court of Appeal indicated that, in deciding whether to grant leave to amend a claim form so as to include a new employment discrimination claim, a central issue is likely to be the question of whether or not the new claim would have been within the secondary time limit if it had been brought in fresh proceedings; and that, in that context, there is no significant difference between the “just and equitable” test which applies in considering whether a fresh claim has been brought within the relevant secondary time limit and the “balance of hardship and justice” test which is usually the basis upon which amendment-leave applications are decided (pursuant to the principles declared in Selkent Bus Company  v  Moore [1996] ICR 836).  In this general connection, see especially paragraphs 40, 41 and 47 of the Ali judgment.  

13.	As is well known, in deciding whether a particular proposed or actual discrimination claim is inside or outside the scope of the relevant secondary discrimination time limit, it is appropriate to have regard to the factors which apply in the context of deciding whether a personal injuries claim in tort is inside or outside the secondary time limit which applies in relation to such a claim.  In my view, if that is done, the factors which are of principal importance, in the circumstances of this case, are the following:

			(1)	the reason for the delay;

			(2)	the duration of the delay; and

			(3)	whether the respondent has been prejudiced because of the delay.

14.	The reason for the delay was that the claimant did not know of the possibility of making an associative discrimination claim under the DDA until she spoke to a solicitor, in September 2015.  Soon after that solicitor told her about the possibility of being able to claim for associative disability discrimination, she asked, in a letter dated 15 September 2015, for leave to amend her claim form so as to include such a claim.  

15.	In my view, the potential availability of a remedy in respect of “associative” disability discrimination is a very technical and rather esoteric aspect of employment law.  Therefore, in my view, there is no surprise that the claimant did not know of the potential availability of such a remedy until she spoke with the solicitor, and there was nothing about the circumstances of this case which would make it inappropriate of the claimant not to have consulted a solicitor, or some other skilled employment law advisor, at some earlier stage.  

16.	The primary time limit for making a claim of discriminatory dismissal under the DDA is three months from the date of dismissal.  Those three months expired on or about 27 June 2015 and the claimant made the relevant application for leave to amend approximately ten weeks later.  Accordingly, the duration of the delay is not very lengthy.  

17.	On the question of prejudice, the following extract from paragraphs 33-36 and 33-37 of Clerk & Lindsell on Torts, nineteenth edition (which relates to the secondary time limit in respect of personal injury claims) is of interest:

	“33-36 - In deciding whether it is equitable to disapply the limitation period, the court must have regard to the degree to which the provisions of [the relevant primary limitation period] prejudice the claimant or any person he represents, and also to the degree to which the exercise of the discretion in favour of [the] claimant would prejudice the defendant or any person whom he represents.  The prejudice to the claimant comes from the loss of the opportunity to pursue his claim against the defendant.     ...

		33-37 – In Hartley  v  Birmingham City D.C., the Court of Appeal held that, as the prejudice to the defendant resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the claimant, from the operation of the limitation period, the loss of the defence as such is of small importance.  It was suggested that what is of paramount importance is the effect of the delay on the defendant’s ability to defend the claim.   ...  The true prejudice to the defendant has been described not as the prejudice of meeting a liability but of having to defend or otherwise deal with that stale claim.     ...”.

18.	In my view, that extract from Clerk and Lindsell accurately reflects the position in relation to prejudice in deciding whether or not to extend the time limit in respect of an employment discrimination claim.  

19.	In my view, the respondent’s ability to adequately investigate, and present its defence to, the proposed new claim is unlikely to be affected, to any significant extent, by the relatively short delay in bringing that claim.  (I certainly have received no evidence of any such adverse effects).  

20.	In deciding whether or not to extend the time limit, it is appropriate to have regard to all of the factors which are listed at section 33(3) of the Limitation Act 1980.  And I have done so.  However, in my view, the three factors considered at paragraph 13 above are the most relevant factors, in the circumstances of this particular case.  

21.	Against that background, and for those reasons, I am sure that, if the proposed new claim were to be brought in fresh proceedings, those proceedings would have been brought within the relevant secondary time limit.

22.		Nevertheless, as already indicated at paragraph 11 above, I still have a residual discretion, notwithstanding my conclusions in relation to the time limit issue, to refuse the claimant leave to amend her claim form by adding a new claim.  I am unaware of any good reason for exercising that discretion by refusing the relevant leave to amend.  (In particular, I note that if this new claim is to be litigated at all, it is appropriate that it should be litigated within the same main hearing as the main hearing which deals with all of the existing claims, because many of the relevant factual issues are common both to the existing claims and to this new claim).  

23.	So, I have granted leave to the claimant to pursue the additional claim specified at paragraph 1 above.  

24.	I should however record my own misgivings about the viability of the new claim.  Arguably, the implication of the decision in London Borough of Lewisham  v  Malcolm, [2008] 1AC 1399, is that the new claim is unlikely to succeed unless an industrial tribunal concludes that the relevant non-attendances would not have been a reason for her dismissal if those absences had been of the same duration, and had occurred with the same frequency, but had happened for a reason unrelated to anybody’s disability.  

25.	Before deciding whether or not to pursue this new claim, the claimant should give careful consideration to the issue which I have raised at paragraph 24 above.  That issue did not form part of the arguments on behalf of the respondent in opposing this application for leave to amend.  In this general connection, I have noted, and respectfully agree with, the comments on applicable legal principles which were made by Employment Judge Drennan QC at paragraph 1.5 of his Decision in McKay  v  Asda Stores Ltd [CRN 396/15, Decision issued on 9 October 2015]:  

“In determining the amendment issue, it was not for me to determine the facts in issue between the parties and, in particular, the merits of the claimant’s claims, amended or otherwise.  In some case law, it has been suggested a tribunal can take into account the underlying merits when an amendment is proposed – being an appropriate consideration for the tribunal ‘under all the circumstances’ when considering an amendment which would add a new claim.  For example, in Woodhouse  v  Hampshire Hospitals NHS Trust [UKEAT/0132/12], it was held by the EAT that the balance of hardship and prejudice may in all the circumstances include an examination of the merits : “there is no point in allowing an amendment to add an utterly hopeless case”.  However, I was not prepared, in the absence of hearing evidence relevant to the merits, to conclude, in the present proceedings, the proposed amendment is ‘utterly hopeless’ as suggested in Woodhouse.  (See also the guidance in SCA Packaging Ltd  v  Boyle.)  For the purposes of my decision on the amendment issue I have therefore assumed the claim, as set out in the proposed amendment, is ‘arguable’.  My decision on the amendment issue was not therefore relevant to any consideration of the prospect for success by the claimant in relation to her said claim.”

Employment Judge:

Date and place of hearing:  8 and 16 October 2015, Belfast.

Date decision recorded in register and issued to parties: