Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2317/14

 

 

 

CLAIMANT:                      Sarah Mary Ennis 

 

 

RESPONDENT:                Northern Ireland Transport Holding Company Ltd,

 t/a Translink (NI)

                                       

 

 

DECISION ON A PRE-HEARING REVIEW

 

The claimant’s application to amend her claim to include a claim of indirect sex discrimination is out of time, and it would not be just and equitable in all the circumstances to amend the claim.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge McCaffrey

 

 

 

Appearances:

 

The claimant appeared in person.

 

The respondent was represented by Mr P Ferrity, Barrister-at-Law instructed by Elliott Garrett Solicitors.

 

 

1.       This claim had been listed for a Pre-Hearing Review to consider the following issue:-

 

                    “Should the claimant’s claim (of unfair dismissal) be amended to include a claim of sex discrimination?

 

2.       I gave reasons orally at the hearing and the claimant requested written reasons, so I now set out the reasons which I gave at the hearing.  The claim currently before the Industrial Tribunal is one of unfair dismissal, the claim of direct discrimination on grounds of disability having been withdrawn.  The claimant now alleges that she suffered indirect sex discrimination, in being asked to provide a urine sample at a medical examination on 30 June 2014 and in not being provided with facilities to wash after that sample was provided.  Her initial ET1 was lodged on 3 October 2014 and she sought an amendment of the claim to include sex discrimination in a letter of 29 October 2014 addressed to the Industrial Tribunal.

 

3.       The first issue to consider is whether the amendment is substantial or minor.  In my view, it is substantial as it seeks to include a completely new head of claim.  The claimant clarified that she sought to allege indirect sex discrimination in relation to the respondent’s practice of requiring women to provide a urine sample, and its failure to provide a facility to clean themselves after the test.

 

4.       The next issue is whether the claim is “relabelling” of an existing claim or a completely new claim.  If it is a relabelling, I do not need to consider the time-limit issue; if a new claim then I must consider the time-limit of three months from the date of the act complained of for lodging a claim.

 

5.       I consider that this is a completely new claim.  The claim before the tribunal is currently one of unfair dismissal.  It relates to the offer of a post to the claimant, which was subsequently withdrawn in light of medical reports the respondent had received and the fact that the respondent had not received satisfactory references for the claimant.  The claim of sex discrimination, as outlined by the claimant in her letter of 29 October 2014, relates to an incident at the medical examination.  It was summed up by the claimant in her letter when she stated:-

 

                    “Women are denied the facility to clean themselves up after the test which in most cases would be required.  Hence, sexual discrimination”.

 

6.       While the incident of the urine sample is referred to in broad terms in the claim form, it is in the context of the Occupational Health Officer having commented on the claimant’s “inappropriate behaviour” during the examination, which was a factor in the withdrawal of the job offer. 

 

7.       Given that I consider the sex discrimination claim asserted by the claimant is a new claim, I must consider the time-limits for bringing such a claim.  The medical examination took place on 30 June 2014 and the claimant was told that the job offer was withdrawn by letter of 4 July 2014.  The time-limit for bringing a claim of sex discrimination is three months from the act complained of (see Article 76(1)            of the Sex Discrimination (Northern Ireland) Order 1976 (as amended).  The claim should have been lodged by 30 September 2014 or at the very latest by 4 October 2015.  The unfair dismissal and disability discrimination claims were lodged on 3 October 2014, within time, and the claimant then wrote requesting an amendment to include sex discrimination on 29 October 2014.

 

8.       The claimant’s explanation for this was that she had received some information from the respondent a few weeks before she lodged the claim which made her aware that the Occupational Health Officer had referred to “inappropriate behaviour” in a report to the Human Resources Officer of the respondent.  She received this either in September or possibly in August under cover of a letter of 4 August from Miss Ludlow of the respondent’s Human Resources Department to the claimant.  That letter enclosed copies of the claimant’s medical reports which included the comment about inappropriate behaviour.

 

9.       Taking account of the case law in relation to an extension of time for claims, I do not consider it would be just and equitable to extend time on this case.  The claimant had the information in mid-August which would have allowed her to formulate her claim.  She could have included it on the original claim form, but did not do so.  She said she consulted a solicitor on 6 October and that he indicated that her claim was for indirect sex discrimination, rather than direct discrimination.  However she did not act promptly to amend her claim.  Rather she waited a further three weeks to write to the tribunal to seek an amendment.  In all the circumstances, I do not believe it would be just and equitable to extend time and the amendment is refused.

 

10.     If I am wrong on the first point, and this is indeed a relabelling, I still do not consider it would be appropriate to allow the amendment.  Applying the principles in Selkent Bus Company Limited v Moore [1996] IRLR 661, the tribunal must consider the balance of injustice and hardship of allowing the amendment as opposed to the injustice and hardship of refusing it.  In my view the potential injustice and hardship to the respondent of allowing the amendment is greater than the injustice to the claimant in refusing the claim.  Allowing the amendment would undoubtedly change the nature and extent of the case considerably, may involve seeking to join the Occupational Health Consultants engaged by the respondents to the proceedings, would involve additional witnesses and lengthen the case considerably.  The claimant still has a live claim before the Industrial Tribunal which she may pursue and so I do not consider that there is hardship or injustice to her in refusing this amendment.

 

11.     At the end of the hearing Mr Ferrity raised the issue of whether there should be a further Pre-Hearing Review to deal with an application for a strike-out order on the basis that the claimant’s claim of unfair dismissal had no reasonable prospect of success, or in the alternative, a deposit order on the basis that the claimant’s claim of unfair dismissal had little reasonable prospect of success.  The reason for seeking this Pre-Hearing Review was that there was a dispute as to whether the claimant was an employee of the respondent as at 4 July 2014, and therefore whether the tribunal had jurisdiction to deal with the claimant’s unfair dismissal claim.

 

12.     I consider it would be appropriate to order such a Pre-Hearing Review.  I direct that a Pre-Hearing Review to deal with the respondent’s application for a strike-out order or in the alternative a deposit order, on the basis that the claimant was not an employee of the respondent as of 4 July 2014 shall be heard on 31 March 2015 at 10.00 am.

 

 

 

 

 

Employment Judge:      

 

 

Date and place of hearing:         2 March 2015, Belfast.    

 

 

Date decision recorded in register and issued to parties: