Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2008] NIFET 92_2FET, [2008] NIFET 92_02FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 92/05 FET

662/05

CLAIMANT: Whyed Muhammed Gill

RESPONDENT: The Extern Organisation Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the time for complying with the Unless Orders made on 16 May 2007 for Additional Information and Discovery is extended for four weeks from the date this decision is registered and issued to the parties. If the claimant does not comply with the orders within that time 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 Kinney

Appearances:

The claimant did not appear and was not represented.

The respondent was represented by Judith Blair, Solicitors of J. Blair Employment Law Solicitors.

The Issues

This hearing was arranged to consider the respondent's application to strike-out the claimant's claims under Rule 17(7)(e) of the Fair Employment Tribunal Rules of Procedure 2005 and Rule 18(7)(e) of the Industrial Tribunals Rules of Procedure 2005 on the grounds that the claimant had failed to comply with an Order for Additional Information and an Order for Discovery dated 16 May 2007.

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 respondent's 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 presented a claim on 18 April 2005 alleging that the respondents had discriminated against him unlawfully on the grounds of religious belief, political opinion and race.

In their response presented on 1 June 2005 the respondents denied the claimant's claims.

A Case Management Discussion was held on 30 October 2006. The Record of Proceedings show that the claimant appeared in person.

At that hearing the Tribunal made an order that the claimant provide to the respondent's representative the additional information set out in their Notice of Further and Better Particulars dated 28 June 2005 which Order was to be complied with by the 5 January 2007 and also that the claimant provide discovery to the respondents' representative in accordance with the Notice for Discovery dated 28 June 2005 which Order again was to be complied with by 5 January 2007.

The respondent's representative wrote to the Tribunal on the 29 March 2007 to advise that they had written to the claimant as he had not complied with the Orders by 5 January 2007 and they had heard nothing further from him. They applied to the Tribunal to strike-out the claimant's claim for non-compliance with the Tribunal Orders.

A Pre-hearing Review was held on 16 May 2007. At this hearing the decision of the Tribunal was:-

"The decision of the Tribunal is that unless the claimant complies with an Order for Additional Information made on 30 October 2006, and an order for Discovery also made on 30 October 2006, not later than 29 June 2007, the Tribunal will make a decision striking out his claim without further consideration or the need to hold a further hearing".

The claimant attended the Pre-hearing Review by telephone conference facility. The claimant accepted that the Orders had not been complied with but told the tribunal that he had been unwell. The concept and consequences of an Unless Order was made clear to the claimant and he did not object to the making of such an Order.

The claimant did provide some information to the respondents which they received on 11 July 2007, two weeks after the deadline on the Unless Order.

The respondent's representatives wrote to the Tribunal on 17 September 2007 informing the tribunal that the Order for Discovery had not been addressed at all by the claimant and that the reply to the Order for Additional Information was inadequate. The reasons for that conclusion were set out in their letter. This correspondence was copied to the claimant and the respondent made a further application that the claimant's claim should be struck out for non-compliance with the Tribunal's Order of 16 May 2007.

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 respondent's 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.

Rule 18(7)(e) of the Industrial Tribunals Rules of Procedure 2005 is set out in the same terms.

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 Chairmen 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".

Submissions

Ms Blair submitted that Orders for Additional Information and Discovery were made on 30 October 2006. The claimant made no attempt to make any response and a further Order was issued on 16 May 2007. This was an Unless Order and allowed the claimant until the 29 June 2007 to comply. In fact compliance was not made until 11 July 2007 some two weeks beyond the deadline and only to the Order for Additional Information. The respondents wrote to the claimant to point out the deficiencies in the claimant's response and pointed out that he had not complied at all with the Order for Discovery. The respondent did not write to the Tribunal until September 2007 in fact giving the claimant some further time to produce this information. Miss Blair submitted that the strike out application should be successful based on the claimant's failure to comply at all with the Order for Discovery and equally should be successful on the basis of the inadequate replies to the Order for Additional Information. Miss Blair acknowledged that a strike out is a draconian Order but invited the Tribunal to take into account that this was not an application that the respondents rushed too. They allowed considerable time for the claimant to provide the necessary information. The original notices were served in June 2005. The claimant was aware at all times of what was happening. The further Case Management Discussions before Christmas meant that the claimant must be aware that these are live issues and he had ample opportunity to address those issues. He failed to do so. The Unless Order made in May 2007 came some two and a half years after the notices were first served.

Miss Blair submitted that it was impossible to fully understand the case being made against the respondent. The claimant has never challenged the information sought as being inappropriate and he has accepted at Case Management Discussions that the information is necessary and has agreed to provide it.

Miss Blair submitted that a strike out was an appropriate remedy. The claimant had already been the subject of an Unless Order. The respondents had attended two further Case Managements Discussions and a Pre-Hearing Review on this point. She submitted that if another remedy was to be considered the Tribunal must ask what the result would be. She submitted that a further Unless Order would serve no useful purpose. She referred to the medical report and to the claimant's condition. She submitted that the medical report procedure failed to address any part of the period prior to the issuing of the first medical report in October 2007. It fails therefore to deal with the period when replies to the Order should have been addressed. In the absence of any evidence the Tribunal must conclude that the claimant was fit at that time. Miss Blair submitted that the claimant's medical report suggests that it is unlikely that he will be fit to attend any proceedings. Miss Blair also invited the Tribunal to consider the overriding objective and the cost of proceedings. The respondent is a small charity which must be careful in its expenditure. They had been caught in a case in which they have received no details of the allegations made against them which has been in existence for over two years with no end in sight, not even the end of the interlocutory process. For these reasons she submitted that the respondent's application should be granted.

Tribunal Conclusions

The Tribunal in reaching its conclusions considered the legislation, the case law referred to, the details available to it from the office file and the submissions of the respondent.

The Tribunal accepts that the purpose of a strike out order is not to punish a defaulting party and that it is a power to be exercised sparingly. It must be a proportionate remedy. Having considered the facts and the factors identified in the case law I conclude that it is not appropriate to strike out the claimants claim.

The Tribunal is satisfied that the claimant has not complied with either of the Orders. However the claimant has made an attempt at complying with the Orders, albeit incomplete. The claimant may have been unwell from September 2007 onwards. Unfortunately the claimant has not taken the opportunity afforded to him by the Tribunal to better explain the nature and severity of his illness, and how it may affect his ability to deal with the issues facing him, and in particular the Orders made against him.

Bearing in mind in particular the comments of Lord Justice Sedley in Blockbuster, I determine that the appropriate course is to extend the time allowed under the Order made on 16 May 2007.

I consider that a fair trial is still possible, but only if the claimant plays his full part in proceedings and as a matter of urgency provides the respondent with full details of his claim and all matters of discovery.

I have therefore decided to extend the time allowed for compliance with the Orders made on 16 May 2007 which will be extended to four weeks from the date this decision is registered and issued to the parties.

I remind the claimant that if he fails to comply with the Orders the consequence will be that his claim shall be struck out on the date of the 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.

The respondent shall advise the Tribunal if the claimant fails to comply with these Orders.

Chairman:

Date and place of hearing: 30 January 2008, Belfast

Date decision recorded in register and issued to parties: