Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2008] NIFET 541_00FET, [2008] NIFET 541_FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 00541/00 FET

03246/00 IT

CLAIMANT: Whyed Muhammed Gill

RESPONDENTS: 1. Mr Day, Director of Personnel

2. Homefirst Community Trust

3. NHSB

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that unless the claimant complies with an Order for Further and Better Particulars made on the 16 September 2003 within 4 weeks of the date this decision is registered and issued to the parties, his claims shall be struck out on the date of non compliance without further consideration of the proceedings or the need to give notice to the claimant or hold a pre-hearing review or any other hearing.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Kinney

Appearances:

The claimant did not appear and was not represented.

The respondents were represented by Mr Devlin, Barrister-at-Law, instructed by the Directorate of Legal Services.

The Issues

This hearing was arranged to consider the respondents' application to strike-out the claimant's claims under Rule 17(7) (e) of the Fair Employment Tribunals Rules of Procedure 2005 on the grounds that the claimant had failed to comply with an Order for Further and Better Particulars dated 16 September 2003.

The claimant did not appear nor was he represented at this hearing. I am satisfied that the claimant was properly notified of today's hearing. I am also satisfied that a check has been made this morning immediately prior to the commencement of this hearing to see if the claimant has attended or has left any telephone message. I am satisfied that he is neither here nor has he contacted the office. In the circumstances I therefore determine that I will proceed to hear the respondents' application in the absence of the claimant and that I will take into account any information available to me in relation to the claimant's position including the claim form, the response form, records of proceedings of case management discussions and correspondence.

Background

The claimant made an application to the Industrial Tribunal and Fair Employment Tribunal on 7 December 2000 claiming that he had been unlawfully discriminated against on the grounds of race, religious belief and political opinion by the respondents. The respondents presented responses on 9 January 2001 denying the claims.

A Case Management Discussion was held on 16 September 2003 at which the Chairman made an Order for Further and Better Particulars to be complied with within eight weeks of the date of the Order.

At that Case Management Discussion the Record of Proceedings made it clear that the claimant confirmed he understood the format in which his replies for the request for particulars had to be made and he agreed to the Order being made. He was also warned of the consequences of not complying with the Order which could include the respondents' applying to strike-out the complaints.

A further Case Management Discussion was held on 14 May 2007. The Record of Proceedings show the claimant participated by way of telephone conference. It is recorded that the respondents alleged that the claimant had not complied with the Order and the matter was listed for a pre-hearing review to consider the following issues:-

"Whether the claimant's claim should be struck-out by reason of his non-compliance with an Order for Further and Better Particulars made on the16^th day of September 2003".

A further copy of the Order of 16 September 2003 was attached to this Record of Proceedings.

The pre-hearing review was listed for hearing on 13 September 2007. The Tribunal then received correspondence from the claimant's wife indicating that the claimant was too unwell to attend the pre-hearing review. The hearing was postponed at the Tribunal's own motion and the claimant's wife (who now represented the claimant) was asked to provide medical information.

A further Case Management Discussion was held on 22 October 2007. The Record of Proceedings reveals that the claimant did not appear and was not represented. A redacted consultant psychiatrist medical report had been furnished by the claimant. This indicated that the claimant was to be reviewed by the consultant psychiatrist around 16 November 2007. The claimant was ordered to produce a further medical report detailing the following matters:-

"(1) The prognosis for the claimant's medical condition;

(2) When, if ever, the claimant will be medically fit to attend a Pre-Hearing Review in the above case which is likely to last approximately one hour.

(3) Depending on the outcome of the Pre-Hearing Review when, if ever, the claimant will be fit to attend a substantive Hearing which is likely to last for a period of 5-15 days consecutively and to give evidence, be cross-examined, and, if unrepresented, to cross-examine the respondents' witnesses, given that:-

(a) The claimant has ten other cases, two of which also require Pre-Hearing Reviews to be listed and, depending on the outcome of those Pre-Hearing Reviews, substantive Hearings which could each last for a week or longer;

(b) The remaining eight cases are due to be heard at regular intervals over the next 14 months."

A further Case Management Discussion was held on 17 December 2007. Again the claimant did not appear and was not represented. However, a further medical report was e-mailed on the morning of the hearing and was considered at the Case Management Discussion. The report was not provided by the consultant psychiatrist but by a senior house officer and the specific matters set out in the previous Case Management Discussion to be dealt with in the medical report had not been fully addressed.

At paragraph 5 of that Record of Proceedings the President sets out:

"5. I am concerned that my Order of 7 November 2007 in which I set out specific matters which should be dealt with in the medical report having regard to the cases of Teinaz –v- London Borough of Wandsworth and Andreou –v- Lord Chancellor's Department, was not fully addressed. However, on the basis of the medical that was provided by the senior house officer, it would appear that although the senior house officer "hopes" that when the claimant's medical condition improves he would be able to deal with the eleven sets of proceedings which he has brought, it is the expert opinion of the senior house officer and presumably the consultant psychiatrist that the claimant's medical condition may never fully resolve until these proceedings are dealt with. On that basis and in view of the fact that the case is now 7 years old and the Order is outstanding from 16 September 2003 I conclude that, balancing the interests of justice between the parties, the pre-hearing review should be listed for Wednesday 30 January 2008 at 11.00 am".

The Law

The respondents' application is based on Rule 17 (7) (e) of the Fair Employment Tribunal Rules and Procedure 2005 (as amended) which provides:-

(7) Subject to paragraph (6), a Chairman or Tribunal may make an Order –

(e) Striking-out a claim or response (or part of one) for non-compliance with a decision or order or practice direction.

In deciding to strike out a claim for non-compliance with an Order the Tribunal must consider the overriding objective contained in Regulation (3) of the 2005 Rules:-

"3(1) the overriding objective of these Regulations and the rules in Schedules 1, 2 and 3 is to enable Tribunals and Chairman to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable –

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense."

The EAT considered the relevant factors to consider in exercising a discretion to strike-out in the case of Weir Valves and Controls (UK) Ltd –v- Armitage [2004] ICR page 371. At paragraph 17 page 375 Judge Richardson set out the following:-

"But it does not follow that a striking-out Order or other sanction should always be the result of disobedience to an Order. The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused, and, still, whether a fair hearing is still possible. It should consider whether striking-out or some lesser remedy would be an appropriate response to the disobedience."

In the case of Blockbuster Entertainment Ltd -v- James [2006] IRLS 630 the Court of Appeal also considered the power of the Tribunal to strike-out a claim. Lord Justice Sedley in his decision said this at paragraph 5 –

"This power, as the employment tribunal reminded itself, is a draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Blackledge [2002] 2 BCLC 167 and of the EAT in De Keyser v Wilson [2001] IRLR 324, Bolch v Chipman [2004] IRLR 140 and Weir Valves v Armitage [2004] ICR 371, but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal".

He then said at paragraph 21:-

"It is not only by reason of the convention right to a fair hearing vouchsafed by Article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196, especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact – if it is a fact – that the tribunal is ready to try the claims; or – as the case may be – that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences".

Mr Devlin's Submissions

Mr Devlin in his submissions pointed out the chronological background to the case. The claim related to events in September 2000. A Notice for Particulars was sent by the respondents on 6 December 2002 and almost a year was afforded to the claimant to provide replies. The Order for Replies to Further and Better Particulars was made on 16 September 2003 some 4 years and 4 months ago. From that time the claimant has clearly understood the format in which the replies had to be made and the fact that the information they would contain was essential to the respondent to properly prepare their case. He agreed in September 2003 to the Order being made and gave an undertaking to reply to the Order within eight weeks. The claimant was given express warnings of the possibility of a strike-out application and application for costs for failure to comply with the Order. Mr Devlin stressed that four years and four months later no replies whatsoever had been furnished. This was not a case of inadequate replies, but where no attempt was made by the claimant to provide the required information.

Mr Devlin addressed the factors identified in Weir Valve.

He contended that the magnitude of the breach was self-evident. The claim was brought more than seven years ago and it has never been particularised. The period of default in this case is grossly excessive, a period of four years and four months. Despite the Order being by consent there was no attempt at compliance whatsoever. The medical evidence that has laterally been produced provides no grounds for the non-compliance. There was no question of ill-health at the earlier stage or indeed at the Case Management Discussion on 14 May 2007. The claimant was in effect given a further four months to comply with the Order before the pre-hearing review which was listed for September 2007 and the request to postpone the hearing was made only the day before the hearing was due to take place.

Mr Devlin submitted that the pre-hearing review postponed in September was postponed until today and so the claimant effectively had a further four and a half months in which to provide the information outstanding. It was clear that the fault for the non-compliance lay solely with the claimant and there is no suggestion that anyone else was at fault.

He submitted that the disruption, unfairness and prejudice was palpably clear and that seven years on very serious complaints made against the respondents' had not been particularised. There are three respondents - the Board, the Trust and Mr Day who had since retired. It was grossly unfair that serious complaints should hang over the heads of the respondents for such a long time and in circumstances where they had never been particularised. There was clear and obvious prejudice to the respondent in a case of a recruitment and selection process, in recollecting events of some seven years before. It had never been properly particularised. Mr Devlin submitted that a fair hearing was no longer possible for the above reasons. He submitted that the overriding objective required the Tribunal and the parties to deal with matters expeditiously, fairly and by saving expense. He pointed out that there had now been five hearings together with a pre-hearing review in September adjourned at the last minute. This was the fifth hearing concerning the claimant's non-compliance which had been attended by the respondent. He contended that a strike-out was the only appropriate remedy and was entirely proportionate. He pointed to the length of time involved and the lack on the claimant's part of any attempt to respond to the Order. A further Unless Order was entirely inappropriate as the claimant has done nothing to deal with an Order which has been outstanding for over fours year. Public resources were being wasted in a case in which the claimant has made no effort to pursue his case.

Mr Devlin also addressed the medical evidence. He referred the Tribunal to the letter from Dr Irwin the senior house officer of 10 December 2007 wherein it was stated:-

"It is our opinion that Mr Gill may not recover fully from this moderate depressive episode until the main precipitant ie. work related stress following these litigation proceedings, is resolved".

Mr Devlin submitted that it followed that a sensible reading of that paragraph is that the proceedings themselves were causing the claimant's problems and the proceedings will never be brought to a conclusion unless the Tribunal strike them out.

Tribunal's Conclusions

I have considered carefully the 2005 Rules and the guidance on their operation provided by the courts in the cases mentioned. I have also taken into account the medical evidence relating to the claimant's illness and the submissions of Mr Devlin.

The Tribunal is conscious that the power to strike-out is a draconian power and is not an Order to be regarded as a punishment. However, having regard to the factors identified in Weir Valve and the terms of the overriding objective Mr Devlin has made a strong case for such an order.

It is clear that the claimant has completely failed to comply with the terms of an Order explained to him and made on 16 September 2003. It is also clear that the claimant has had a number of opportunities in which compliance could have been made. There is no evidence before the tribunal to indicate that the fault lies anywhere other than with the claimant.

I have carefully considered whether some lesser remedy would be an appropriate response. One such option is an Unless Order which would provide that unless a further Order made by the tribunal is complied with by a stipulated date the claim would be automatically struck out on the date of non-compliance without the need to give Notice or to hold a pre-hearing review or any other hearing.

It is clear that considerable disruption and prejudice has been caused by the failure of the claimant to properly particularise his claim. The matters complained of are over 7 years old and the ability of the respondent to properly prepare and deal with any allegations made at hearing have been impaired. However, bearing in mind the words of Lord Justice Sedley in Blockbuster I have concluded that I should not make a strike out Order. Whilst clearly historically the claimant has ignored the need for compliance I have taken into account the fact that an Unless Order has never been made in this case, and the evidence, albeit incomplete, of the claimant's medical condition.

I consider that a fair hearing is still possible but only if the claimant fully appraises the respondents of the detail and particulars of his claim in the immediate future. In the circumstances the tribunal makes an Unless Order in the following terms.

Unless the claimant complies with the Order of 16 September 2003 (a further copy of which is attached to this decision) within four weeks of the date this decision is recorded as registered and issued to the parties, his claims will be automatically struck out on the date of non compliance without the need to give the claimant any further notice or to hold a pre hearing review or any other hearing.

The respondents will notify the Tribunal if there is no compliance with this Order by the due date.

Chairman:

Date and place of hearing: 30 January 2008, Belfast

Date decision recorded in register and issued to the parties:

FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 03246/00
00541/00 FET
ORDER FOR FURTHER PARTICULARS
APPLICANT: Whyed Gill
RESPONDENTS: Home First Community Trust & Others

On an application by the respondents I hereby require the applicant to furnish in writing to the respondents' representative such particulars as are specified in the Schedule attached within 8 weeks of the date of this Order.

The respondents' representative is:
Brangam, Bagnall & Company
Solicitors
Hildon House
30-34 Hill Street
BELFAST
BT1 2LB

Date: 16 September 2003

TAKE NOTICE that where a requirement has been imposed on a party in his absence that party is entitled to apply to the Tribunal before the expiry of the period specified above to vary or set aside the requirement contained in this Order.

Name and address of person to whom order issued:
Mr W Gill

FETI3(FP)

CASE REFS: 03246/06
00541/00 FET

SCHEDULE

Order for Further Particulars of:

As per schedule attached dated 6 September 2002.

FET l3(FP)

CASE NO: 03246/06
00541/00FET

BETWEEN
WHYED GILL
Applicant
And

HOMEFIRST COMMUNITY H&SS TRUST
Respondent

TAKE NOTICE that you are hereby required within seven days from the date of service of this Notice upon you to furnish to the Solicitors on record for the Respondent Further and Better Particulars of the following matters arising out of the service of the Application to Industrial Tribunal (IT1/FETI) herein:

. In respect of Post 1, identify and specify precisely when, by whom and in what form is alleged the Applicant was refused an application form.

In respect of Post I, identify and specify the date upon which the Applicant first formed the belief (a) that he had been discriminated against upon religious/political/racial grounds, and (b) that he had been victimised.

In respect of Post 2, identify and specify precisely when, by whom and in what form is alleged the Applicant was informed that he had not been appointed to the post.

In respect of Post 1, give full and detailed particulars of the precise basis upon which the Applicant formed the belief that he had been discriminated against

In respect of Post 2, give full and detailed particulars of all facts and circumstances relied upon by the Applicant in support of his contention that he has been unlawfully discriminate against.

In respect of Post 2, give full and detailed particulars of each and every respect if any in which the Applicant contends that he had better and/or more relevant qua1ifications than the successful candidate.

In respect of Post 2, give full and detailed particulars of each and every respect, if any in which the Applicant contends that he had better and/or more relevant experience than the successful candidate.

8. Give full and detailed particulars of each and every religious belief, if any, of the
Applicant by virtue of which it is alleged he has been discriminated against.

Give full and detailed particulars of each and every political belief, if any, of the
Applicant by virtue of which his alleged he has been discriminated against.

Give full and detailed particulars of the race of the Applicant by virtue of which it is
alleged he has been discriminated against.

11.Give full and detailed particulars of the precise basis for the victimisation complained
of by the Applicant as against the Respondent.

12. Give fill and detailed particulars all facts and circumstances relied upon by the
Applicant in support of his contention that he has been victimised.

Dated this 6th day of September 2002

Signed.

Brangam Bagnall & Co
Solicitors for the Respondent
Hildon House
30-34 Hill Street

Belfast
BT12LB