THE INDUSTRIAL TRIBUNALS

CASE REF:	1258/05

CLAIMANT:			Eamon Patrick McLaughlin

RESPONDENT:		South & East Belfast Health & Social Services Trust

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal on the first issue is that the originating claim does not include complaints of direct discrimination and indirect discrimination from 2001 as claimed by the claimant and, on the second issue, in determining whether the claim is capable of amendment to include the complaints from 2001.  The tribunal finds that it is not capable of amendment.
 
Constitution of Tribunal:
Chairman (sitting alone):		Mr J V Leonard

Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.
The respondent was represented by Mr A Devlin, Barrister-at-Law, instructed by MSC Daly, Solicitors.

REASONS

1.	In this matter the claimant commenced proceedings by lodging an originating claim with the Office of the Tribunals on 13 June 2005 (allocated Pre-Acceptance Reference No: 84/05).  As that claim was rejected on 22 June 2005, on 5 July 2005 an application was made by the claimant’s representatives for a review of the tribunal’s decision not to accept the claimant’s claim and, further, on 5 July 2005 the claimant’s representatives re-submitted the claimant’s claim form and provided additional information in the form of an appendix attached thereto titled ‘Additional Information’. For ease of reference the tribunal shall in this decision further refer to that as, “the Appendix”.  A review hearing proceeded on 8 September 2005 and the Vice President of the Tribunals revoked the decision to reject the claim form.  As a consequence of this, the claim form as originally lodged by the claimant on 13 June 2005 was accepted and was allocated the case reference number, 1258/05, as above-mentioned, and the claim was construed as containing the information present in the original claim form as received on 13 June 2005 but also containing the additional information contained in the Appendix, as received on 5 July 2005 by the Office of the Tribunals.

2.	By response dated 7 October 2005, the respondent Trust rejected the claimant’s contentions.  At a Case Management Discussion held on 26 January 2007, the President of the Tribunals directed that a pre-hearing review should take place on 2 March 2007 to determine the following issues:-

“(1)	Whether the originating claim includes complaints of direct discrimination and indirect discrimination as claimed by the claimant or from 2003 as claimed by the respondent.

(2)	If not, whether the claim is capable of amendment to include the complaints from 2001.”

3.	At the outset of the hearing, the respective representatives were in concurrence that the first issue ought more properly to read as follows, and the Chairman directed that the issue be accordingly amended:-

“(1)	Whether the originating claim includes complaints of direct discrimination and indirect discrimination from 2001 as claimed by the claimant or from 2003 as claimed by the respondent.”

4.	The respective representatives indicated to the tribunal that it was intended not to call oral evidence but to proceed by way of oral submissions only.  Accordingly, on foot of the oral submissions, the tribunal proceeded to hear the matter and to determine the listed issues, as amended.

5.	For the claimant, counsel, Mr Potter, drew to the tribunal’s attention the contents of an indexed bundle of documents consisting of 95 numbered pages and, in particular, the claim form received by the Office of the Tribunals on 13 June 2005 and the Appendix.  Mr Potter stated that the original claim form had been completed by the claimant himself and without legal assistance and Mr Potter conceded that in some respects the content of that claim form had been not satisfactory.  It was for that reason that the additional information contained in the Appendix was provided to the tribunal.  Looking, firstly, at the content of the claim form, the claimant had therein complained of ‘sex discrimination’ and in Paragraph 8.3 of the claim form the claimant had stated that the matter was ‘ongoing’.  In Paragraph 8.4 of the claim form the claimant had complained of ‘discrimination and irratic [sic], stressful redeployment, increasing risk of disciplinary action, unfair treatment on grounds of gender and equity.  Continuous and unrelenting’.  No dates had been provided by the claimant in that section of his claim form.  In Paragraph 12.1 of the claim form the claimant had stated the following, “past, pleas, unmet, unanswered, meeting 31/4/03”.  That clearly related to a past date expressly stated as being ‘31/4/03’.  Therefore the tribunal could take from the claim form that the material issue of redeployment was continuous and over a period of time.

6.	Mr Potter further pointed out that the Appendix had not accompanied the original claim form.  The claimant’s case was that the tribunal had to examine events from 2001 onwards in respect of the alleged discrimination.  The further particulars of the claimant’s claim as set out in the Appendix, at Paragraph 7 of that, alleged redeployment on 71 occasions; but that was just an example of the patterns of discriminatory treatment alleged by the claimant.  If one then looked at Paragraph 12 of the Appendix it was stated that, “Over the last two to three years”, the claimant had been redeployed on approximately 70 occasions.  An interpretation of that expression, ‘two to three years’ necessarily had to refer the tribunal back from the date 5 July 2005 (when Appendix was submitted to the Office of the Tribunals) to July of 2002.  The pattern of continuing discrimination indeed pre-dated July 2002 and this was only one aspect of the case.  The claimant’s instructions were that the discriminatory practices alleged had commenced indeed at the end of 2001 and were carried forward particularly into the period around March of 2002.  However, it must be said that the claimant was at a distinct disadvantage as, notwithstanding considerable efforts, he had been unable to locate his 2002 diary in which had been recorded information which would have been most valuable to him in assisting his case.

7.	Mr Potter referred the tribunal to the Northern Ireland tribunal case of Colm McKeown  v  Bombardier Aerospace [unreported - Case No 284/03 FET], a case heard by the Fair Employment Tribunal.  This was a case, so Mr Potter submitted, very much akin to the one before this tribunal.  In that case, although upon the particular facts the tribunal had not accepted the contention that there was no need to make an application to amend the claim, nonetheless, the tribunal had considered the import of Selkent Bus Company Limited, t/a Stagecoach Selkent  v  Moore [1996] IRLR 661.  Following Selkent, ‘Category 1’ amendments were not affected by time limits.  Category 1 amendments were amendments made to any claim which sought to add factual details to existing allegations already made.  In McKeown, the tribunal had scrutinised the time period to be examined concerning the allegations of unlawful discrimination in that matter. That tribunal had determined that the claimant did indeed have to make application to amend his claim to include alleged acts of unlawful discrimination arising from an earlier period than that which had been stated in the originating application. However, the tribunal in McKeown determined that the claimant would be permitted to amend his application.  Mr Potter argued that McKeown was a case rather similar to the matter before this tribunal; this tribunal ought properly to follow McKeown.

8.	For the respondent, counsel, Mr Devlin, submitted that the tribunal should have regard to Paragraph 8.2 of the claimant’s claim form.  When the entirely clear and straightforward question was posed in the form, “When did the matter about which you are complaining happen?” the claimant’s answer was “19/3/05”.  The tribunal ought to take note of the fact there had, for good reason, been no reference to that fact in the claimant’s representative’s submission.  If one then examined Paragraph 12.1 of the claim form, the only reference to any date was to a meeting of “31/4/03”.  

9.	If one then turned to examine the Appendix, one noted that Paragraph 12 stated that, “Over the last two to three years the Claimant has been redeployed on approximately seventy occasions, to deal specifically with a patient who need [sic] to be restrained”.  Clearly with reference to any timescale, at this point now with the assistance of professional representation, the case that was being expressly made on behalf of the claimant referred to, “Over the last two to three years”.  However the tribunal ought properly to regard this as being quite an unsatisfactory use of language.  The entirely unsatisfactory nature of the claimant’s case was then further amplified in Paragraph 2 of the Appendix.  That contains the following sentence: “The incidents of unlawful acts/omissions include, but are not necessary limited to, the matters highlighted below.” Mr Devlin submitted that this use of language was entirely unsatisfactory. How was one supposed to construe this?  This was not at all clear in the absence of some minimum standard of precision in the use of language on the part of any legal representative.   However, any endeavour now being made on behalf of the claimant to take advantage of this unsatisfactory phraseology should be stoutly resisted by the tribunal, otherwise that would have the effect of placing the respondent in an entirely impossible position in endeavouring to deal with these significant complaints of unlawful discrimination.  

10.	Mr Devlin then referred the tribunal to the claimant’s statutory questionnaire made pursuant to Article 74 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) contained in the bundle of documents that was before the tribunal.  If one looked at Paragraph 2.7 and 2.8 of that questionnaire, there was a specific reference to the date ‘14 June 2004’ when the claimant was stated to have worked on night shift.  Paragraph 2.8 of that referred to a named individual who was to be taken to be a comparator when set against the alleged treatment afforded to the claimant; again, the date of 14 June 2004 was mentioned.

11.	Turning then to Paragraphs 6.15 and 6.19 of the statutory questionnaire, once again there was a reference to the date, 14 June 2004, and to the period from then until 17 March 2005. This was with reference to the claimant allegedly working shifts and being redeployed to a particular hospital ward on approximately seventy-one occasions.  There was quite significantly no reference to any earlier date or period. It would have been quite open to the claimant’s representatives to have drafted the questionnaire in such a way as to explore earlier periods of time if these had been referable to any particular issues of alleged discrimination. Quite intentionally, that had not been done.

12.	If one then turned to the claimant’s Notice for Additional Information in the matter, the earliest date therein referred to was in Paragraph 1 (with reference to the respondent’s replies to the statutory questionnaire) and referred to a meeting taking place on ‘30 April 2003’.  Paragraph 4.1 of the claimant’s Notice for Additional Information referred to a period from 14 June 2004 to 17 March 2006 (that latter being perhaps a misprint for ‘2005’).  Paragraph 8 referred to the period 14 June 2004 to 17 March 2005.  Again, there was no reference whatsoever made in this document to the year 2001, nor to the year 2002, nor to any period prior to April 2003 (which latter was referred to in Paragraph 15).  

13.	Mr Devlin indicated that the respondent indeed quite content and was prepared to deal with and to meet any allegations of unlawful discrimination made from the period April 2003 onwards.  However the respondent did take significant objection to any allegations which pre-dated that time on the basis that these were now being quite unfairly introduced by the claimant and that these bore no relation to any part of the case that had been pleaded by the claimant up to this point.  

14.	Mr Devlin’s submission continued that this was clearly a case where leave to make an amendment to the claimant’s claim would be required; the tribunal ought properly to refuse that.  The balance of prejudice was in favour of the respondent. Apart from anything else, the respondent would be in quite significant difficulties in locating and obtaining relevant documentation and records going as far back as the years 2001 and 2002. Anything prior to April 2003 would indeed put the respondent at a significant disadvantage.  It would be quite an unsatisfactory state of affairs, Mr Devlin submitted, if the tribunal were to allow a case pleaded in such an unsatisfactory fashion to be freely opened up, to the unfair disadvantage of the respondent, entirely on the basis of the vagueness and the inadequacy of the pleading. The tribunal ought properly to refuse the claimant’s application and ought to confine the case to the period from April 2003 forwards.

15.	In reply to the foregoing, Mr Potter submitted that the balance of prejudice favoured the claimant.  Quite clearly the claimant had intended the tribunal to conduct a detailed examination of patterns of alleged discrimination which were structural in nature.  If one looked at the McKeown case, one could observe the earlier tribunal adopting a proper approach to such applications; this tribunal ought properly to follow such an approach.  In McKeown the respondent had argued hardship; there was apparently a contention made in argument that certain documentation was not available to the respondent in that matter and reliance would have had to be placed on oral evidence, when the memory of the respondent’s witnesses would no doubt have faded.  In McKeown the tribunal had not accepted the respondent’s argument and had found that the balance of the argument favoured the claimant; this tribunal ought properly to follow that approach.  

16.	In response to a point made by Mr Devlin, Mr Potter did concede that the pattern of discriminatory treatment perpetrated against the claimant was not continuous and there was indeed a ‘gap’ where there appeared to be no incidents of which the claimant wished to complain.  Mr Potter’s instructions on precisely when that period commenced and ended were not sufficient to state that with any precision to the tribunal.  However this was a ‘state of affairs’ case of discrimination, as it were, and the tribunal had properly to examine the entire state of affairs enduring from 2001 onwards in order properly and adequately to determine the claimant’s complaints.  Accordingly, the tribunal ought properly to construe the claimant’s complaint as including complaints of direct and indirect discrimination from 2001 onwards; no amendment was required for the tribunal to do that.  If the tribunal, nonetheless, were to take the view that an amendment were to be required, that application to amend ought to be determined in favour of the claimant.

THE TRIBUNAL’S DETERMINATION

17.	In reaching its determination the tribunal gave consideration to the papers which were before it and to the respective oral submissions. The tribunal is indeed grateful for the care taken by both counsel in the presentation of these oral arguments. The tribunal looked first to the matter of any available evidence that might shed light upon the matter of the nature of the claim which the claimant had intended to make to the tribunal, at the outset, concerning the unlawful discrimination alleged by him.  Following the submissions, the tribunal is referred to specific and expressly made references or allusions to dates on or between which the alleged unlawful discrimination is stated to have occurred.  In his originating claim form, the claimant has expressly stated that the matter about which he was complaining happened on ‘19 March 2005’, as he puts it, and that the matter was ‘ongoing’.  

18.	The claimant was invited in the claim form to provide additional dates, if more than one date was relevant, in that section of the claim form numbered 8.4.  However, in that part of the claim form the claimant does not refer to the discrimination alleged by reference to any date.  Rather, he refers in what is rather generalised terminology to the discrimination being, ‘continuous and unrelenting’.  He also refers to ‘situational deployment inherently bringing me in conflict with … (then continued at Section 12.1) … co-ordinators.  Making my role stressful and – untenable’.  He also at that part refers to, ‘past, pleas, unmet, unanswered, meeting 31/4/03’.  The earliest date of reference is therefore 31 April 2003.  There is no indication here that the claimant expressly intended to refer to anything prior to April 2003.  

19.	When the opportunity is shortly thereafter afforded to the claimant (having at that stage the benefit of legal representation) to amplify his complaint or complaints by way of the Appendix, lodged 5 July 2005, the Appendix does not disclose expressly any precisely stated date antecedent to 14 June 2004 (a date which is therein repeated in a number of places) save for the reference in Paragraph 12 to the sentence, “Over the last two to three years the Claimant has been redeployed on approximately seventy occasions …”.  

20.	The tribunal does have sympathy with the respondent’s representative’s submission that the vagueness of that terminology is unhelpful.  Clearly the intention here is to link the redeployment of the claimant in his work to the alleged discrimination.  However, in a case such as this it must be the proper course to make a claim with such a minimum standard of precision as to fairly place any respondent in a proper position to rebut the claim, if rebuttal is possible.  To employ the expression, ‘over the last two or three years’, clearly does not place any respondent in such a position. Is the respondent to take it that the claimant is referring to a period of two years (prior to the claim being lodged with the tribunal – although again that is not stated) or to three years perhaps?  It is by no means certain to the tribunal what had been intended by use of this terminology.  If one were to construe the usage employed here as referring to no more than two years prior to the claim being instituted, that would take the subject matter of the claim back to June 2003; the respondent’s representative has already indicated that the respondent would be quite content to deal with a claim going back to April 2003.  The difficulty, as far as the respondent is concerned, is that the imprecise use of language is now being invoked, so the respondent would argue, to gain what is contended to be an unfair advantage. Having used this unsatisfactory terminology, it is argued that the claimant now wishes to gain a benefit thereby and to endeavour to extend the claim back into 2002 and indeed as far back as to some (undefined) time in 2001. However, the tribunal is faced with a situation where there has been no reference whatsoever to discrimination stemming from 2001 anywhere in the case made out by the claimant on foot of any of these documents.

21.	The tribunal has of course heard the case that the claimant had completed the claim form himself without at that time having legal assistance.  Notwithstanding that, that particular situation does not apply to the submission of the claim with the 

Appendix included, nor to the content of the statutory questionnaire, nor to the Notice for Additional Information; all of these of course have been expressly referred to in the submissions in support of the respondent’s case.

22.	As far as this tribunal is concerned, it must construe the case which the claimant has intended to make by hopefully bringing to bear a straight forward and common sense reading of the documentation.  There is nothing in this documentation indicating to the tribunal that the claimant had intended from the outset to make out any case of discrimination against the respondent with reference to any time in the year 2001.  The possible case with reference to the year 2002 is so expressed (in the Appendix) as to be vague in the extreme. Accordingly, the tribunal feels that the case which the claimant had intended to make, as borne out by the documentation, is a case of discrimination which indeed Mr Devlin, on behalf of the respondent, has conceded that the respondent is quite prepared to meet, that is to say a complaint or complaints of unlawful discrimination against the respondent covering a period from April 2003 and thereafter.  

23.	As the tribunal is of this view, it must then deal with Mr Potter’s application to amend the claim so as to include complaints of unlawful discrimination that are alleged to have occurred in the years 2001 and 2002.  

24.	The tribunal has been referred to the authority of Selkent and to the Northern Ireland Fair Employment Tribunal case of McKeown.  As in the McKeown case, the tribunal sees this application for amendment as falling within the first category of cases identified in Selkent (that is to say, amendments that are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint).  The claimant’s complaints are clearly concerning alleged treatment at work afforded to him by the respondent with reference to a number of comparators; one such comparator has been expressly named and the others are identified by reference to category.  The complaints are both of direct and of indirect discrimination.  These complaints relate to the alleged redeployment of the claimant to deal with what are known as ‘restraints’, and to redeployment generally, and also to other disadvantages or detriments alleged to have been suffered by the claimant, including financial detriment.  The claimant is not seeking to amend the complaint in any fashion save to include within his claim a period during which the claimant would seek to allege that the discrimination was perpetrated, which period predates any express reference to such in his claim form and in the Appendix.

25.	It has been argued on behalf of the respondent that the balance of hardship or disadvantage favours the respondent. This is for the reason that the respondent will not be able to secure, either at all or readily, certain documentation and records necessary to deal with a claim going back to such an early period.  However, there has indeed been a concession, very fairly made by Mr Potter, that for his part the claimant cannot locate his own diary for the year 2002; thus the claimant himself might also be at a significant disadvantage on that account.  

26.	The tribunal notes that this complaint was instituted in June of 2005 and amplified in early July of 2005. For the respondent, it is argued that any difficulty in securing evidence has been compounded by the failure since then on the part of the claimant to make his case clear until very recent times indeed.  The tribunal has some sympathy with that argument.  The tribunal has considerable difficulty in discerning why it is the claimant did not take steps, immediately professional representation became available to him (at some stage apparently on or shortly before 5 July 2005), to identify with some precision the period during which he is now alleging that the unlawful discrimination was perpetrated.  The tribunal is compelled to accept that there is some weight in the argument that the respondent will be placed in a situation of evidential disadvantage in now attempting to defend proceedings relating to an earlier period of time. It seems that the opportunity was, at a much earlier stage, readily available to the claimant to identify the appropriate time period. If that had been done, the respondent might have been alerted to the necessity to scrutinise and to preserve any relevant documents and records and to do other things. Thereby evidence might have been secured and preserved which the tribunal is informed might well not now be available to the respondent.  This would seem to apply both to potential documentary and also oral evidence.

27.	The tribunal has been referred to the case of McKeown.  The tribunal notes the comments made by the Chairman of the tribunal in that case in Paragraph 8 of the decision.  It is perhaps useful to quote from the Chairman:-

“The tribunal has also considered the timing and manner of the application.  If it had been the case that the claimant had been represented throughout by legally qualified representatives, the Tribunal would have had no sympathy with the application to amend as plainly in those circumstances, there would have been a substantial delay on the part of the claimant in making the application some two years after the commencement of his case.  However that was not the case …”.

28.	This matter is clearly distinguishable from McKeown in regard to the matter of early legal representation; here the claimant had that, McKeown, it appears, had not.  The tribunal feels that it is appropriate to take a view similar to that which evidently would have been taken by the Chairman in McKeown had the claimant in that case been represented throughout by legally qualified representatives.  In this case legal representation of the claimant was available from a point in time (on or before 5 July 2005) very shortly after the claimant had first lodged his claim form.  

29.	The tribunal is conscious of the hardship which will be sustained by the claimant in refusing the amendment sought. However, on balance, and noting the significant evidential difficulties which will almost certainly beset not just one but indeed both sides of the case, and further noting all of the arguments advanced, the tribunal determines that it shall not accede to the claimant’s application to amend the claimant’s complaint to include complaints from 2001.  To accede to that request would be to determine the matter of achieving a fair balance between the hardship to be sustained by the claimant in refusing the amendment, against the hardship to be sustained by the respondent in granting it, too far in favour of the claimant; the tribunal does not believe that it would be appropriate to do so in this case.

30.	Accordingly, the tribunal’s determination upon the first issue is that the originating claim does not include complaints of direct discrimination and indirect discrimination from 2001 as claimed by the claimant and, that being the case, on the second issue, in determination of the question of whether the claim is capable of amendment to include the complaints from 2001, that question is answered by the tribunal in the negative.

31.	The case may proceed to a full hearing in the light of the foregoing.

Chairman:

Date and place of hearing:	2 March 2007, Belfast

Date decision recorded in register and issued to parties: