THE INDUSTRIAL TRIBUNALS

CASE REF:   2124/13

CLAIMANT:			Emma Rosemary McCaig

RESPONDENTS:		1.	Chief Constable of the Police Service of
					Northern Ireland
				2.	Karen Kenny
				3.	Sylvia Boyd
				4.	Rosie McHugh

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the application to amend the claim of direct disability discrimination to add a claim of an alleged failure to make reasonable adjustments, contrary to the Disability Discrimination Act 1995, is refused.

Constitution of Tribunal:
Vice President (sitting alone):		Mr N Kelly

Appearances:
The claimant appeared in person and was not represented.
The respondents were represented by Ms R Best, Barrister-at-Law, instructed by Crown Solicitor’s Office.

Background

1.	The claimant had been employed by the PSNI in a civil support role since 1992.  She moved from Seapark to Larne in August 2011 to work as a Station Enquiry Agent (‘SEA’) dealing with calls from members of the public.  

2.	On 11 December 2013 the claimant lodged a claim form alleging that she had been discriminated against on grounds of disability.

3.	She set out in her claim form details of her return from sick leave on 27 November 2013.  She argued that she had received a GP ‘fit to return to work’ certificate.  She alleged that the PSNI Occupational Health doctor refused to accept this certificate and she was told to go home.  She stated that she refused to go home and continued to attend her place of work in Larne.  She was eventually instructed to go home.  She complained that her full pay, rather than sick pay at the 50% rate, should have been reinstated.  She complained that someone else was doing her job in Larne and that there was no job for her.  She complained about a failure to get SEA training.  

4.	In the claim form, at one point, the claimant referred to four ongoing grievances and said that she felt that she had been discriminated against.  The content of those grievances were not explained.  

5.	On 31 January 2014, the respondents lodged a response.  They denied disability discrimination of any form.  They accepted the claimant had been disabled for the purposes of the Act.  They stated that she had received basic training with adjustments as required.  However no further training could have been offered to the claimant (or to anyone) unless a Command and Control course lasting some three days had been successfully completed.  The claimant had failed to successfully complete that three day course on three separate occasions.

6.	The first such occasion was in September 2011.  The second such occasion was in November 2011.  The third such occasion was in February 2013.  On the third such occasion, the first-named respondent had put in place detailed and agreed adjustments allowing the claimant 25% extra time to complete the test.  The claimant still failed.  At this point, three separate three day courses had been provided at public expense with no success and the claimant had been working as a SEA for some 18 months approximately.  

7.	The respondents in their response stated that a fourth three day course had not been offered to the claimant.  It was the claimant’s level of skill and competency rather than her disability which led to her failure to complete these courses.  A redeployment to other duties was therefore proposed.  The claimant went off sick and remained off sick for between 9 and 10 months.  

8.	The respondents referred in their response to her attempt at return to work in November 2013.  They stated that normal practice was that any employee would have notified in advance the date of their proposed return so that specific Occupational Health opinions could have been sought.  The claimant had failed to do so.  She was told to go home as the Occupational Health Department had not directed that she was fit to work, there were health and safety issues, and in any event no post was available.  Full pay was eventually restored.

9.	There was a Case Management Discussion on 26 March 2014.  The claimant was unrepresented at that point and attended in person.  Employment Judge Buchanan offered a six week postponement to allow her to seek advice.  He was clearly concerned that she was unrepresented and was anxious to ensure that she had an opportunity to take whatever advice that she needed and, if necessary, to secure representation.  The claimant declined.  

10.	The parties agreed a list of legal and factual issues.  There was one agreed legal issue, ie:-

“Whether the claimant was treated less favourably on the ground of her disability contrary to the Disability Discrimination Act 1995 (as amended).”

	That one legal issue was clearly one of alleged direct discrimination.

	There were several agreed factual issues which were discussed and set out in writing.  Those agreed factual issues related to the attempted return to duty by the claimant in November 2013, to the claimant’s non-completion of three C&C courses and to training and redeployment.  

11.	Clearly Employment Judge Buchanan took some time and some care to ensure that the claimant understood what was going on and that she understood that issues needed to be clarified and identified in writing.  The parties agreed that the claimant was not bringing a claim alleging a failure to make reasonable adjustments contrary to the 1995 Act.  The record of the Case Management Discussion clearly stated:-

“The claimant confirmed that she is not bringing a claim in respect of a failure to make reasonable adjustments.”

12.	The written record of that Case Management Discussion, containing that phrase, was sent to the claimant on 31 March 2014.  No comment was received from the claimant in respect of that document.  

13.	On 14 May 2014 the claimant e-mailed the tribunal to seek an amendment.  That suggested amendment was to add a claim alleging a failure to implement reasonable adjustments.  That e-mail stated that she felt that this aspect formed a significant and fundamental part of her claim and she stated that she felt that the main reason for her treatment was a failure to implement reasonable adjustments.  However the e-mail seems to have been primarily focused on a failure to obtain funding for legal representation from the Equality Commission.  The claimant stated:-

“I have so far, been unable to secure finances (by way of a loan) to afford my legal advice and advice/support, this of course places me at a tremendous disadvantage, and having consulted with the Equality Commission, have been advised that claims for failure to implement reasonable adjustments fall within their remit as they deal with claims of disability discrimination.  

I feel that reinstatement of my claim for failure to implement reasonable adjustments would gratefully increase my chance of securing legal assistance and funding from the Equality Commission which would allow me to pursue my claim in a fair and just manner.”

14.	The claimant is incorrect to refer to a ‘reinstatement’ of a claim alleging a failure to implement reasonable adjustments.  There appears to have been no such claim in the first place.  It would appear that the claimant had simply clarified that position in the course of the Case Management Discussion.  

15.	In any event the application for an amendment was listed for a pre-hearing review on 18 June 2014.  That pre-hearing review was to determine:-

“(a)	whether the claimant should be allowed to amend her claim to the tribunal to include a claim of failure to make reasonable adjustments;

 (b)	whether any such claim is in time; and

 (c)	if not, whether it is just and equitable to extend the time for bringing such a complaint.”

16.	The claimant, in response to a question from the Vice President, outlined the nature of her proposed amendment.  She referred to a document which she had handed in, in the course of the Case Management Discussion, to Employment Judge Buchanan and the Vice President read that document.  The claimant amplified and explained the content of that document.  Essentially, the claimant proposes to allege a failure to make reasonable adjustments in relation to her transfer from Seapark to Larne in August 2011, a failure to make reasonable adjustments in relation to her first, second and third training courses in September 2011, November 2011 and July 2012.  She also proposed to allege a failure to make reasonable adjustments in relation to a failure to reply to an e-mail in May 2012 and in relation to proposed redeployment of her to Brooklyn in February 2013.  She therefore wished to complain of matters which arose between August 2011 and February 2013.  

17.	The claimant gave evidence and was cross-examined by the respondents’ representative.  The claimant accepted that there had been no reference to the alleged failures between August 2011 and February 2013 in her claim form.  She repeated, on more than on occasion, that this matter had been clarified in the document she had produced to Employment Judge Buchanan in the course of the Case Management Discussion.  However, it was explained to the claimant that this was simply a proposed amendment, the amendment had not been accepted and that was the purpose of the pre-hearing review.  

18.	When asked to explain why these claims had not been included in the claim form, she stated that she had completed the claim form alone without assistance and alleged that this was no more than a failure to use the correct terminology.  That appears to be incorrect.  It is not simply a failure to use particular terminology such as ‘direct discrimination’ or ‘failure to make reasonable adjustments’.  There is an absolute failure to mention or to deal with allegations in relation to incidents or failures which are alleged to have occurred between August 2011 and February 2013.  

19.	It also appears clear from the claimant’s specific answers to cross-examination that she did seek advice from the Equality Commission as far back as February 2012 in relation to an alleged failure to make reasonable adjustments.  No satisfactory explanation had been produced by the claimant for her failure to raise that issue in the claim form and her failure to assert that this was an issue in the course of her Case Management Discussion.  She alleged that because she was alone in the course of the Case Management Discussion she was at a disadvantage.  She could not satisfactorily explain why she did not take the clear invitation of Employment Judge Buchanan to accept a six week postponement to enable further advice to be taken.  She did not satisfactorily explain why, given that she now accepts that she had received advice from the Equality Commission as far back as February 2012, why she had not raised this matter specifically in the claim form or why she had been prepared to make it absolutely plain in the Case Management Discussion that she was not pursuing allegations of a failure to make reasonable adjustments in any way.  

20.	Following the conclusion of the claimant’s evidence, I rose for 30 minutes to allow the parties to consider their position and to prepare final submissions.  After final submissions I advised the parties that a written decision would issue in a few days.  This is the written decision.

Relevant law

21.	The position in relation to applications for amendments is set out, in particular, in the case of Selkent Bus Co Ltd  v  Moore [1996] ICR 836.  All circumstances should be considered and the injustice or hardship of allowing the amendment should be balanced against the injustice and hardship of refusing it.  However, three issues in particular need to be considered by the tribunal.  Firstly, the tribunal must consider the nature of the application for amendment, ie whether the proposed amendment is a re-labelling exercise and whether it is minor or substantial.  Depending on the answer to the first question, the tribunal must also consider the application of relevant time-limits and the statutory tests for extending those time-limits.  Finally, the tribunal should also consider the time and manner of the application for an amendment.  

Decision

22.	In relation to the first issue, this is clearly a substantial and significant proposed amendment.  The original claim form does not refer in any way to an alleged failure to make reasonable adjustments.  The simple reference to ongoing internal grievances is not sufficient.  This is a statutory tribunal with a limited jurisdiction and it is for the claimant to make the nature of her claim perfectly plain, both to the respondent, and to the tribunal.  The purpose of the case-management procedure is to ensure that the issues to be determined are clarified, identified and reduced to writing so that no one is misled and that the tribunal is enabled to focus; and to focus exclusively, on the issues which it has to determine.

23.	The claim form does not refer at all to the alleged failure to make reasonable adjustments in the period between August 2011 and February 2013.  It does not refer to any of the factual circumstances relied by the claimant.  It does not refer in any way to an allegation of a failure to make reasonable adjustments.  

24.	The detailed Case Management Discussion conducted by Employment Judge Buchanan focused on this particular issue.  A postponement of six weeks was offered to the claimant to allow her to take legal advice.  It seems not to have been clear to Employment Judge Buchanan at that stage that the claimant had already sought and received advice from the Equality Commission in February 2012 on the specific issue of an allegation of a failure to make reasonable adjustments.  In any event, the offer of six weeks postponement was declined and the claimant elected to proceed.  It is clear that the issues were explained to the claimant.  It is not accepted that the claimant failed to understand any of those issues.  The claimant stated in very clear and unambiguous terms that she did not intend to pursue a claim of an alleged failure to make reasonable adjustments.  Again, in clear and unambiguous terms, the claimant agreed a set of factual issues which did not raise any such claim.  The claimant also agreed a single legal issue which did not raise any such matter or claim.  

25.	Therefore the proposed amendment is not just a re-labelling exercise.  It is an entirely new and substantial claim, not just in relation to the legal basis for such a claim but in relation to the factual circumstances which are alleged by the claimant as a basis for any such claim.  

26.	I therefore conclude that this is a matter in which the statutory time-limits must be examined.  The proposed amendment clearly relates to matters which are substantially out of time.  They relate to specific allegations in relation to her initial employment from Seapark to Larne, in relation to the three C&C courses which she failed and in relation to a failure to respond to an e-mail and in relation to a proposed redeployment.  All of these fall significantly outside the three month                time-limit.  

27.	When considering whether or not it would be just and equitable to extend that                 time-limit, I have to take full consideration of the claimant’s evidence in this respect.  The claimant failed to produce any satisfactory explanation for this delay.  She stated repeatedly that she was not the sort of person to bring a claim.  She stated that she was hoping that the matter would be resolved internally.  However, she was absolutely plain in other parts of her evidence that she alleged that she had been promised full training in relation to the SEA course, even though she had failed on three occasions to complete the C&C course but that that decision had been reversed in February 2013.  Even if that evidence was correct and an accurate representation of the facts, that would mean that the claimant could only have understood that she would not be offered a further attempt to sit the C&C course and that she would not be offered full SEA training at the latest in February 2013.  This was a year after she had received legal advice from the Equality Commission on the specific issue of an allegation of a failure to make reasonable adjustments.  No reason has been advanced to explain why a claim was not made at that point or at any stage thereafter within the three month time-limit or indeed at any stage up to either the tribunal claim on 11 December 2013 or the application to amend the existing claim on 14 May 2014.  

28.	I do not accept the claimant is incapable of understanding these matters or incapable of receiving and understanding legal advice.  She has clearly sought and received legal advice on at least one occasion and has shown every sign of fully understanding the issues to be determined by this tribunal.

29.	Furthermore, I have to bear in mind that the application to amend the current proceedings, received on 14 May 2014, significantly emphasises her hope to obtain funding from the Equality Commission and her belief that adding a claim alleging a failure to make reasonable adjustments would assist that funding.  In her final submission the claimant stated that she resented any such implication and that she was solely concerned with the need to obtain legal representation.  That amounts to very much the same thing.  It seems to me quite clear that the claimant’s belated application to reverse what she said at the Case Management Discussion and to significantly change and to amplify what she said in her earlier claim form is motivated solely by the desire to obtain legal representation whether by specific funding or otherwise.  Nothing else had changed between the date of the Case Management Discussion and 14 May 2014, other than whatever attitude was taken by the Equality Commission in relation to funding and/or the provision of legal representation.  

30.	It seems quite clear from the evidence, and it is accepted by the claimant, that all the facts upon which she relies were known by the claimant at the time of the lodgement of her original claim and at the time of the Case Management Discussion before Employment Judge Buchanan.  I therefore conclude that there is absolutely no reason on which I could find it was just and equitable to extend the clear statutory time-limits in this case.  

31.	The application for an amendment to include a claim for alleging failure to make reasonable adjustments is therefore refused.  The claim as originally drafted and as clarified in the Case Management Discussion will proceed to hearing on the dates indicated, ie 11 – 15 August 2014.  I note that the parties have not proceeded to exchange witness statements as directed, no doubt because of this pending application for an amendment.  I therefore direct that the case shall proceed by way of oral evidence-in-chief, cross-examination and re-examination.

Vice President:

Date and place of hearing:	18 June 2014, Belfast

Date decision recorded in register and issued to parties: