Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS: 52/15 FET

77/15 FET

2518/15

 

 

 

CLAIMANT: Noel Jon Paul McIlwee

 

 

RESPONDENTS: 1. Dale Farm Ltd t/a Dromona Creamery

2. Brian Kerr

 

 

DECISION

 

The decision of the Tribunal is that the claimant's claims, and each of them, against the respondents are struck-out, pursuant to Rule 12(2) of the Fair Employment Tribunal Rules of Procedure contained in Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, on the grounds the claimant has failed to comply with an 'Unless Order' made by the Tribunal, dated 26 March 2016.

 

Constitution of Tribunal:

 

 

Employment Judge: Employment Judge Drennan QC

 

 

Reasons

 

1.1 The Tribunal made an 'Unless Order', dated 3 March 2016, at a Case Management Discussion on 3 March 2016, for the reasons set out in the record of proceedings of the same date. The said 'Unless Order' was made, pursuant to Rule 12(2) of the Fair Employment Tribunal Rules of Procedure contained in Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 ('the Rules of Procedure') and it required the claimant to reply by 18 March 2016 to previous interlocutory orders made by the Tribunal on 4 February 2016 and which had not been complied with by the claimant. Copies of the relevant interlocutory notices to be replied to, the Record of Proceedings of the Case Management Discussion on 4 February 2016 were attached to the said 'Unless Order'.

 

1.2 In particular, the Orders, the subject-matter of the said 'Unless Order', dated 3 March 2016, required the claimant, by the date of compliance to:-

 

(i) reply to the respondents' Notices for Additional Information, dated 16 October 2015 and 21 December 2015;

 

(ii) reply to the respondents' Notice for Discovery, dated 21 December 2015;

 

(iii) provide a schedule of loss;

 

(iv) provide notification of any comparator relied on by the claimant.

 

1.3 These Orders having been made at a Case Management Discussion on 4 February 2016 remained outstanding at the Case Management Discussion on 3 March 2016, in circumstances where the substantive hearing was listed for hearing from 16 - 20 May 2016.

 

1.4 In the record of proceedings, dated 3 March 2016, of the Case Management Discussion of the same date, which the claimant did not attend, I stated, insofar as relevant and material to this decision:-

 

"5. It is apparent from recent correspondence between the respondent's solicitor and the claimant that the claimant is fully aware of the Orders made by the Tribunal, as set out above but has failed in any such correspondence to address and/or to reply in any proper way to the Orders made by the Tribunal. In the circumstances, I am satisfied that the claimant has failed to date to reply to the Tribunal's Orders. These are Orders of the Tribunal and must be complied with. There has been no application by the claimant for any extension of time in relation to the dates for compliance. I am satisfied that the claimant's failure to reply to the said Orders means that the respondents are not in a position to properly prepare their defence to the claimant's claims and that, in the circumstances, a fair trial is not possible in the absence of compliance by the claimant with the Tribunal's said Orders.

 

6. ... In the circumstances, I was satisfied that it was appropriate for me to make an 'Unless Order' whereby unless the said Orders or each of them are complied with by the dates set out in the said 'Unless Order', the Tribunal may make a decision striking out the claimant's claim and each of them without further consideration of the proceedings or a need to give notice or to hold any further hearing. The said 'Unless Order' made by me will be attached to this Record of Proceedings. The claimant must understand that, if he fails to comply with the said 'Unless Order', in the absence of any other application for an extension of time and/or for relief from sanction, then his claims may be struck-out, as set out above, which will mean that these proceedings will be at an end. During the time that has already lapsed since the claimant was given an opportunity to comply with the Tribunal's said Orders, I concluded that the date for compliance with the said 'Unless Order' will be 2.00 pm on 18 ^th of March 2016.

 

... ."

 

The said Record of Proceedings and 'Unless Order' were sent to the claimant by post and e-mail on 3 March 2016.

 

2. A further Case Management Discussion was arranged on 23 March 2016 to consider the respondent's representative's application, as set out in their e-mail, dated 21 March 2016, to strike-out the claimant's claim for failure to comply with the said 'Unless Order', dated 3 March 2016, following further correspondence from the claimant, dated 7 March 2016.

 

In the e-mail, dated 21 March 2016, the respondent's representative referred to the failure of the claimant to comply with the four requirements of the 'Unless Order', dated 3 March 2016, referred to above; but the respondent's representative also referred to the fact that the claimant had now also failed to provide any witness statements on behalf of himself or any witness he wished to call by 14 March 2016, which had been ordered by the Tribunal at the Case Management Discussion on 4 February 2016.

 

3.1 Rule 12(2) of the Rules of Procedure states as follows:-

 

"A decision or order may also provide that unless the decision or order is complied with the Tribunal or Chairman may make a decision striking-out the claimant or, as the case may be, the response on the date of non-compliance without further consideration of the proceedings or the need to give notice under Rule 18 or to hold a pre-hearing review or a hearing under Rule 22." [My emphasis]

 

It has to be noted that, as set out above, this Rule provides that the Employment Judge has a discretion whether or not to strike-out a claimant's claim on the date of non-compliance without further consideration of the proceedings or the need to give notice or to hold a pre-hearing review or a further hearing. This position should be contrasted with the similar Rule, which previously applied in Great Britain, under Rule 13(2) of the Employment Tribunal Rules of Procedure 2004. This Rule provided that, where there is non-compliance with an 'Unless Order', the claim shall be struck-out on the date of non-compliance. As a consequence of the absence of discretion under the said Rule, a body of case law has grown up in Great Britain in relation to the granting of relief from sanction, where a claim has been struck-out for non-compliance with an 'Unless Order' (see later)

 

3.2 Under the Employment Tribunal Rules of Procedure 2013, which now apply in Great Britain, Rule 13(2) of the 2004 Rules has been replaced by Rule 38 under the 2013 Rules of Procedure. Under Rule 38(1) of the 2013 Rules of Procedure it is still provided that, if an 'Unless Order' is not complied with it shall be dismissed without further Order; but it also provides under Rule 38(2):-

 

"A party whose claim has been dismissed, in whole or in part, as a result of such an Order they may apply to the Tribunal in writing within 14 days of the date of the Notice was sent to have the Order set aside on the basis that it is in the interests of justice to do so and unless the application includes a request for hearing, the Tribunal may determine on the basis of written representation." [My emphasis]

 

3.3 There are therefore some differences between the Rules of Procedure in Northern Ireland and in Great Britain on this issue. However, I am satisfied the case law to be found in relation to the application of the Rules of Procedure in Great Britain, both under the 2004 and 2013 Rules of Procedure (see later), is of relevance, in the exercise of any discretion by an Employment Judge in this jurisdiction, pursuant to Rule 12(2) of the Rules of Procedure.

 

4. Under Regulation 3 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, it is provided that:-

 

"(1) The overriding objective of these Regulations and the Rules and Schedules in Schedule 1 ... 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 of the complexity or importance of the issues;

 

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

 

(d) saving expense

 

(3) The Tribunal or Chairman shall seek to give effect to the overriding objective when it or he -

 

(a) exercises any power given to it or him by these Regulations or the Rules in Schedule 1 ...

 

(b) interprets these Regulations or any Rule in Schedule 1 ...

 

(4) The party shall assist the Tribunal or Chairman to further the overriding objective."

 

In Peifer v Castlederg High School & Another [2008] NICA 49, Girvan LJ stated:-

 

"(3) Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 ('the Rules of Procedure') is based on the provisions of Order 1, Rule 1A of the Rules of the Supreme Court. Provisions of Order 1, Rule 1A and Regulation 3 were intended to be exactly what they are described as being, namely overriding objectives. The full implications of those Rules identifying the overriding objectives have not been fully appreciated by Courts, Tribunals or Practitioners. These overriding objectives should inform the Court and the Tribunals in the proper conduct of proceedings. Dealing with cases justly involves dealing with cases which are proportionate to the complexity and importance of the risk issues ensuring that the case is dealt with expeditiously and fairly and the saving of expense. Parties and Practitioners are bound to conduct themselves in a way which further those overriding objective. ...

 

(4) When parties before the Tribunal appear in person without the benefit of legal representation the lack of legal experience on the part of the unrepresented may lead to the pursuit of irrelevancies and unnecessary length of proceedings. While Tribunals must give some latitude to personal litigants who may be struggling in a complex field they must also be aware that the other parties will suffer from delay, incur increased costs and be exposed to unstructured and at times irrelevant cross-examination. While one must have sympathy for a Tribunal faced with such a situation the Tribunal remains under the same duty to ensure that the overriding objective in Regulation 3 are pursued."

 

Gillen LJ in the case of Moffatt v Moffatt [2014] NICA 68 said in relation to the position of litigants-in-person:-

 

"The Court recognises that litigants who are represented must not be prejudiced because the opposition is unrepresented. Indeed, we take the opportunity to endorse the view of Kay LJ in Tinkler v Elliott [2012] EWCA Civ 1289, where he said at Paragraph 32 of his judgment -

 

"An opponent of a litigant-in-person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant-in-person. It seems to me on any view, the view that the litigant-in-person 'did not really understand' or 'did not appreciate' the procedural courses open to him ... does not entitle him to extra indulgency. The fact that, if properly advised he would or might have made a different application then cannot avail him now. That would be to take the sensitivity of the difficulties of a litigant-in-person too far."

 

5. At the Case Management Discussion on 23 March 2016, as set out in the Record of Proceedings dated 25 March 2016, which again the claimant did not attend, after referring to the previous history in this matter, as outlined above, I stated, as follows:-

 

"5. At the date of this hearing, the claimant had still not provided any such witness statements. As set out in the Record of Proceedings, dated 4 ^th of February 2016, this Order in relation to witness statements was made by consent. It was agreed therefore that any evidence to be called by the claimant must be by witness statement. The claimant has not made any application to set aside or vary the said Order. He has not stated he does not intend to call any such evidence and/or that, in the alternative, he only wishes to submit written representations for consideration at the hearing, pursuant to Rule 13(5) of the Rules of Procedure. The claimant said failure to comply with this Order puts at risk the timetable previously ordered, for the respondents' witness statements but also the dates for hearing. This failure by the claimant has arisen since the making of the 'Unless Order' [dated 3 ^rd of March 2016].

 

(6) Under Rule 12(2) of the Fair Employment Tribunal Rules of Procedure where there is a failure to comply with an 'Unless Order', the Tribunal retains a discretion whether to strike-out a claim, without the need for further consideration of the proceedings, the need to give notice under Rule 18 or to hold a pre-hearing review or a hearing under Rule 22. The claimant did not seek an extension of time and/or has not made any application for relief from sanction. Although there were some typographical errors in the said 'Unless Order', I do think this affected the meaning of the said Order, not least given the relevant documents attached to the said Order, which enclosed the copies of the Notices and Orders made by the Tribunal.

 

7. I read the claimant's correspondence in his said e-mail of 6 ^th of March 2016 to the respondent's representative. I think it has to be accepted that there has been some limited attempt by him to comply with the said 'Unless Order'. However, he has made no attempt to reply to each of the relevant paragraphs of the respondents' said Notices for Additional Information. To comply with the said 'Unless Order' he must do so. It is not sufficient to merely send this e-mail, with no reference to the said paragraphs of each Notice and the replies required to be given by him. It is apparent from his e-mail the claimant is in a position to properly reply to the said Notices. He has not complied in any way with the said Notice for Discovery. If he has no such discoverable documents, the subject of the said Notice he must state so. He has not notified, as ordered, the identity of any comparator relied on. The claimant has not provided a schedule of loss. However, I note in this e-mail he refers to a claim for £6,000.00 for stress and hurt feelings. If the claimant is not making any claim for financial loss, then this might be sufficient compliance. However, if he is making any claim for financial loss, this must be set out in a schedule of loss as ordered.

 

8. In light of the foregoing, I had to consider whether to exercise my discretion to strike-out the claimant's claim. I take into account the claimant is a litigant-in-person but that cannot be a determinative factor. It is clear from his e-mail he is able to set out his claim in detail and therefore there can be no good reason why he has not done so in compliance with the 'Unless Order'."

 

In relation to my discretion I find some helpful guidance, albeit strictly on the issue of relief from sanction, in the decision of Underhill P, as he then was, in the case of Thind v Salvesen Logistics Ltd [UKEAT/0487/09] when he stated:-

 

' 14 ... The Tribunal must decide whether it is right, in the interests of justice and the overriding objective, to grant relief to the party in default notwithstanding the breach of the 'Unless Order'. That involves a broad assessment of what is in the interests of justice, the factors which may be material to that assessment will vary considerably according to the circumstances of the case and cannot be neatly categorised. They will generally include, but may not be limited to the reason for the default, and in particular, whether it is deliberate; the seriousness of the default; the prejudice to the other party; and whether a fair trial remains possible. The fact that an 'Unless Order' has been made, which of course put the party in question squarely on notice of the importance of complying with the Order and the consequences if he does not do so, will always be an important consideration. 'Unless Orders' are an important part of the Tribunal's procedural armoury (albeit not one to be used lightly), and they must be taken very seriously; there effectiveness will be undermined if Tribunals are too ready to set them aside. But that is nevertheless no more than one consideration. No one factor is necessarily determinative of the course which the Tribunal should take. Each case will depend on its own facts ... .'

 

9. In light of the said guidance and the matters set out in the previous paragraphs of this record, I concluded that the claimant should be given 'one further last chance' to comply with the said 'Unless Order', by giving him a short extension of time until 5.00 pm on 5 ^th of April 2016 to enable him to do so. I am not clear if the claimant's failure to date is deliberate, especially given his failure to attend the last two Case Management Discussions; or is it because he is a litigant-in-person. I take into account the replies to the said Notices have been outstanding for a considerable period of time. He can have no further excuse in light of what is set out above. If the complainant complies with the 'Unless Order'; as amended by 5.00 pm on 5 ^th of April 2016, I think a fair trial remains possible. In light of the claimant's failure to provide his witness statements, I decided to also extend the time for him to do so to 5.00 pm on 5 ^th of April 2016; but also to conclude compliance in the said amended 'Unless Order'. The claimant must understand any continuing failure is likely to result, in the absence of good reason, that I will exercise my discretion to strike-out his claim.

 

... ."

 

6. The said 'Unless Order', dated 25 March 2016, therefore required the claimant:-

 

"(1) to reply to the respondent's Notices for Additional Information dated 16 October 2015 and 21 December 2015;

(2) to reply to the respondent's Notice for Discovery dated 21 December 2015'

 

(3) to provide the schedule of loss;

 

(4) to provide notification of any comparator relied on by the claimant; and

 

(5) to provide a signed and dated witness statement of the claimant and any witness he wished to call;

 

by no later than 5.00 pm on 5 April 2016."

 

Again copies of the said Notices, a copy of the previous 'Unless Order' dated 3 March 2016 and copies of the Records of Proceedings dated 4 February 2016, 3 March 2016 and 25 March 2016 were attached to the said 'Unless Order'. The said 'Unless Order' and Records of Proceedings, with attachment, were sent by e-mail and post to the claimant on 25 March 2016.

 

7. Following the issuing of the 'Unless Order', dated 25 March 2016, by the Tribunal, as referred to previously, the claimant replied by e-mail, dated 26 March 2016 at 6:59, in which he stated:-

 

" ... Thank you for your e-mail, I have read the PDF attached but I have absolutely no idea what to do next?

 

I do not understand any of it to be blunt ... I apologise for causing any confusion and I certainly don't wish to wasting anyone's time, this has never happened to me before and I am a 'fish out of water' with this stuff ... I need to get help with this as I can't understand what it is I have to do next as the victim in the case.

 

Thanks and apologies if I'm making any mistake ... ."

 

By an e-mail dated 4 April 2016, to the Tribunal, the claimant referred to trying to contact the respondents' representative and that:-

 

"I have no idea what else I am meant to do."

 

In this e-mail he also referred to two potential named witnesses and other potential unnamed witnesses.

 

8. Following the Easter break, by letter and e-mail, dated 5 April 2016, the Tribunal wrote to the claimant, pointing out the Tribunal Office must remain impartial and cannot offer advice or guidance. It also stated he might obtain information and assistance on employment-related matters from the Labour Relations Agency and/or his local Citizens Advice Bureau and it provided to the claimant the relevant address/contact numbers etc for the Labour Relations Agency.

 

By a further e-mail, dated 6 April 2016, the Tribunal wrote to the claimant and referred, in particular, to the information set out in the Record of Proceedings dated 25 March 2016 and reiterated that, as per the letter dated 5 April 2016, the Tribunal Office must remain impartial and cannot offer advice or guidance and also gave relevant details to the 'link' to the Tribunal's procedure booklet.

 

9. By a series of e-mails, dated 6 April 2016, to the Tribunal, copied to the respondents' representative, the claimant made reference to a copy of a re-tweet allegedly relating to the second respondent and further generalised allegations against the respondents and each of them, but also searches made by him on Google, again allegedly relating to the second respondent.

 

In a further e-mail, dated 6 April 2016, to the representative of the respondents, the claimant stated:-




 

 

" ...

 

I sent you guys

 

1. Further information, it was in the form of some of the instances where Brian Kerr treated me the way in which he did with dates of when it happened.

 

2. The witness statements are available from Dale Farm HR as they were interviewed by Andrea Duncan and they agreed in the investigation that Brian Kerr had been treating me differently to them.

 

3. Does comparator mean some other case to compare it with? If so then a slightly similar case would be Rosemary McMaster vs JNK Components.

 

4. Schedule of loss ...

 

When I alerted Dale Farm as to how Brian Kerr was treating me what I was losing (value) or what I may indeed end up losing (prospective career) wasn't something I was thinking about ... I just wanted justice, I would now like some form of compensation.

 

This is an extremely stressful thing for me and I'm trying to get on with my life ... ."

 

10. In an e-mail, dated 6 April 2016, to the Tribunal, copied to the claimant, the respondents' representative, having referred to the 'Unless Order', dated 25 March 2016, and pointing out he had not complied with any of the five elements outlined in the 'Unless Order', made an application to the Tribunal for the claims of the claimant to be struck-out, pursuant to Rule 12(2) of the Fair Employment Tribunal Rules of Procedure.

 

In the said e-mail, the respondents' representative also pointed out:-

 

" ... We would make the Employment Judge aware that at the Case Management Discussion on 2 ^nd of February 2016, the only CMD which the claimant had participated in (by phone), the claimant expressed concerns about being unaware of what was required of him and Judge Crothers explained to the claimant that he could obtain guidance from the 'LRA or the Law Centre' and there was a 'multiplicity' of organisations that could assist him. The Tribunal will also be aware from an e-mail the claimant sent to the Tribunal on 29 ^th of January 2016 (seeking to get the CMD of 2 ^nd of February adjourned) that the claimant had sought advice from the Equality Commission who had referred him to the Pro Bono Unit of the Law Society and the claimant was waiting a reply from them. It is very clear that the claimant had every opportunity to seek advice or guidance to help him with his claim, should be wish to avail of such services.

 

... ."

 

11.1 In the Record of Proceedings, dated 25 March 2016, in Paragraph 8, I referred, in particular, to the guidance of Underhill P, as he then was, in Thind v Salvesen Logistics Ltd [UKEAT/0487/09], to which I again rely upon for the purposes of this decision. Strictly, as stated previously, Thind referred to an application for relief from sanction, following an automatic strike-out for non-compliance under the GB Rules. However, I remain satisfied that it provides useful guidance for a Tribunal in Northern Ireland, under its Rules of Procedure, in relation to how to exercise its discretion on foot of an application to strike-out a claim for failure to comply with an 'Unless Order'.

 

11.2 In the case of Morgan Motor Company v Morgan [2015] UKEAT/ 0128/15/DM , HH Judge Eady QC, which is also a relief from sanction case, referred with approval to the guidance in Thind and held it was necessary for a Tribunal, in such a case, to determine whether it was in the 'interests of justice' (having in mind the overriding objective) to set aside its earlier Order dismissing the claim for failure to comply with an 'Unless Order'. She held, in light of the guidance in Thind, that this was a broad discretion, the material factors would vary considerably from case to case, albeit that they would generally include the reason for the default and whether it was deliberate, the prejudice to the other party and whether a fair trial remained possible. The fact that an 'Unless Order' had been made was also said by the Employment Appeal Tribunal to be an important consideration but would only be one such consideration.

 

HH Judge Eady QC noted, with approval, the judgment of Lord Neuberger, President of the Supreme Court, in the case of Global Torch Ltd v Apex Global Management Ltd & Others (No 2) [2014] 1 WLR 449 when he observed:-

 

"23 ... The importance of litigants obeying Orders of Court is self-evident. Once a Court Order is disobeyed, the imposition of a sanction is almost always inevitable if Court Orders are to continue to enjoy the respect which they ought to have. And, if persistence in the disobedience would lead to an unfair trial, it seems, at least in the absence of special circumstances, hard to quarrel with a sanction which prevents the party in breach from presenting (in the case of a claimant) or resisting (in the case of a defendant) the claim. And, if the disobedience continues notwithstanding the imposition of a sanction, the enforcement of the sanction is almost inevitable, essentially for the same reasons. Of course, in a particular case, the Court may be persuaded by a special factor to re-consider the original Order, or the imposition or enforcement of the sanction.

 

24 In the present case ... there do not appear to be any special factors ... further, it is difficult to have much sympathy with a litigant who has failed to comply with an 'Unless Order', when the original Order was in standard terms, the litigant has been given every opportunity to comply with it, he has failed to come up with a convincing explanation to why he has done so, and was he, albeit through a company of which she is a major shareholder, who invoked the jurisdiction of the Court in the first place."

 

HH Judge Eady QC noted that it was 'right to say that the Order under consideration in Global Torch arose in the context of High Court proceedings and not in the ET, and the same considerations might not always apply, since the Civil Procedural Rules do not expressly apply to proceedings of the ET, which are governed instead by the ET Rules (and see further the observations of Langstaff P to this effect in Harris v Academies Enterprise Trust & Others)." However, she acknowledged that that approach to relief from sanction for non-compliance with an 'Unless Order' was likely to give rise to very similar considerations (see per Underhill P, as he then was, in Thind v Salvesen Logistics Ltd [UKEAT/0487/09] .

 

11.3. In the case of Hylton v Royal Mail Group Limited [2015] UKEAT/0369/14, which involved a failure to comply with an Order for Particulars, which Order was then repeated but as an 'Unless Order', the said 'Unless Order' was then not complied with; albeit some days later the claimant did provide 38 pages of material. The claimant applied for relief from the automatic strike-out, under the GB Rules (see before), following his non-compliance. The application by the claimant for relief from sanction was refused by the Employment Tribunal, as the Judge, on the facts, found, inter alia, that the new material did not assist and indeed he held that it made matters more difficult; but, in particular, he thought without particularisation [my emphasis], a hearing could not go ahead. Langstaff P, as he then was, found the Employment Tribunal had not erred in law when refusing the application for relief.

 

In the course of his judgment, Langstaff P referred to the judgment of the Employment Appeal Tribunal in the case of Johnston v Oldham MBC [UKEAT/0095/13] in which the Employment Appeal Tribunal held:-

 

"2 It is a critical aspect of fairness that a party knows the case it has to meet. It is also a central tenet of justice that disputes should be heard where a fair hearing is possible and cases should not likely be ruled out on a procedural technicality without determination on the merits. These two principles may seem on occasion to be in conflict, as where a case is struck-out for the failure of one party to state its case sufficiently to allow the other to answer it, but in truth they are capable of reconciliation by exercising case-management powers to facilitate a hearing which is fair for both parties by ensuring that each know sufficiently what case it has to meet."

 

Langstaff P concluded, inter alia:-

 

"21 The purpose of case-management orders is in general to secure, where that remains possible, that there should be a fair hearing of the allegations made by one party against the other. Where accusations have been made on a very generalised basis, [my emphasis] as here, clarity of the accusation is needed. The respondent is entitled to know what acts it has been accused of, and the Tribunal cannot adjudicate properly unless that is the case. And unless and until that is done, it is difficult if not impossible to have a fair trial. As observed in Johnston v Oldham, parties are entitled to know the case against them.

 

22 It must usually be the case that, where a claim has been struck-out because of a failure to provide such information but by the time of an application for relief the information has been supplied, a Court will grant relief. The purposes of the Orders would have been achieved. Again, as observed in Johnston, the approach should be facilitative rather than penal. That cannot, however, apply where there has been no compliance even at the stage of seeking relief from the Order which was made. Orders are made to be observed. As was said by Underhill J (as he then was) in the case Thind v Salvesen Logistics Ltd [2010] UKEAT/0487/09, every case turns on its own facts and it should not be thought to be usual that relief will be granted from the effect of an 'Unless Order' (Paragraph 36):

 

' ... provided that the Order itself has been appropriately made, there is an important interest in Employment Tribunals enforcing compliance, and it may well be just in such a case for a claim to be struck-out even though a fair trial would remain possible ... '."

 

11.4 Indeed, in the earlier case of Johnston v Oldham MBC, which was a case involving, inter alia, whether an 'Unless Order', requiring the claimant to give sufficient particulars of claim, had been complied with, Langstaff J applied the judgment of the Court of Appeal in Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 463 where Pil LJ held (at Paragraph 34) that:-

 

"The sanction embodied in an 'Unless Order' in traditional form takes effect without the need for any further Order if the party to whom it is addressed fails to comply with it in any material respect." [My emphasis]

 

According to Langstaff J, this meant that compliance with an Order need not be precise and exact; what matters is whether it is material or substantial and, to this, much would depend on the actual wording of the Order. He considered that 'material' was a truer word to use than 'substantial', where the issue is whether there has been compliance with an Order for Further Particulars of a claim or response, as it draws attention to the purpose of the Order, namely to enable the other party to know the case it has to meet. He felt, if the word 'substantial' were used it would run the risk of indicating that a quantative approach was permissible, when this was not the test.

 

12. In this matter, the claimant has brought a claim of unlawful discrimination, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998, as amended, together with a claim for unfair constructive dismissal. In making these claims, the claimant has made very serious allegations against the respondents; but, in particular, in relation to the alleged actions of the second respondent. His claim forms included many generalised allegations against the respondents and each of them. At the Case Management Discussion on 2 February 2016, which he attended, by telephone, the claimant agreed to Orders requiring replies to Notices for Additional Information and/or Discovery and Inspection, identification of his comparators and the provision of a schedule of loss. The Notices for Additional Information and/or Discovery and Inspection, together with the agreed statement of issues agreed between the parties following this Case Management Discussion, were clearly designed to require the claimant to particularise in detail his claim so that the respondents knew the case they had to meet.




 

 

By the date of the Case Management Discussion on 3 March 2016, which the claimant did not attend, the claimant had not complied with the said Orders and, in the circumstances, as set out in the Record of Proceedings dated 3 March 2016, I made the 'Unless Order', dated 3 March 2016, requiring compliance by the claimant of the said four elements set out in the said 'Unless Order' by 18 March 2016.

 

13.1 Following the making of the said 'Unless Order', dated 3 March 2016, by the date of the Case Management Discussion on 23 March 2016, the claimant still had not complied with the Order for Discovery, had not provided a schedule of loss or identified any comparators. He had provided, in his e-mail, dated 6 March 2016 some more limited details of his claim; but I emphasised to him in Paragraph 7 of the Record of Proceedings, dated 25 March 2016, he must reply to each relevant paragraph of the said Notices for Additional Information and he must do so in order to comply with the 'Unless Order', dated 25 March 2016. This he has failed to do. In subsequent e-mail correspondence, he has again set out a series of further generalised allegations against the respondents and, in particular, the second respondent. This is contrary to the 'Unless Order' and, in particular, what he was told to do, as set out in the said Record of Proceedings. He has provided again some further limited documents by way of discovery but without regard to the said Notice for Discovery and/or whether those are the only discoverable documents to be relied upon by him. He has not provided the schedule of his financial loss and it is apparent from his latest series of e-mails that he is seeking to make such a claim. He has not dealt with the issue of comparators, as he was required and agreed to do, and, in this context, it is not compliance with the 'Unless Order' to refer to other case law, as identification of his comparators.

 

13.2 At the Case Management Discussion on 2 February 2016, the Tribunal made standard case-management orders, by consent, requiring the claimant to prepare and exchange by 14 March 2016 with the respondents' representative signed and dated witness statements by himself and any witness he wished to call. The said Record of Proceedings dated 4 February 2016, set out helpful guidance in relation to the contents of any such witness statement. The claimant did not provide any witness statements to the respondents' representative by the due date, 14 March 2016. In addition, he has not provided any witness statements to the respondents' representative as required by the 'Unless Order' dated 23 March 2016. In the recent series of e-mails from the claimant, he has referred to two named but also other unnamed potential witnesses; but has not made any attempt to provide the statements, as required by the 'Unless Order' on behalf of himself and on behalf of any other witness he intends to call. Merely stating, as set out in his recent series of e-mails, that witness statements are available from Dale Farm HR is not complying with the Tribunal's said 'Unless Order'.

 

14.1 In the circumstances, I am satisfied that the claimant has not complied with the Tribunal's 'Unless Order', dated 25 March 2016, in relation to the requirements set out therein; and, insofar as the claimant has provided some limited further details of his claims in his e-mail dated 6 March 2016 and/or some limited discovery and further generalised allegations to his recent series of e-mails, dated 6 April 2016, I am not satisfied there has been material compliance with the said Orders, as set out in Marcan and Johnston. This failure has been compounded by the failure of the claimant to provide witness statements and/or a schedule of loss, as ordered by the Tribunal. The respondents are entitled to know the case they have to meet. Given the claimant's said failures, the respondents are not in such a position and, in the circumstances, I am not satisfied that a fair trial is now possible. (See further Johnston v Oldham MBC and Hylton v Royal Mail).

 

14.2 The claimant, despite his earlier failure to comply with the 'Unless Order' dated 3 March 2016 was given a further and final opportunity to rectify his previous failures. This he has again failed to do. It was made very clear to him, in the Records of Proceedings, that these were Orders of the Tribunal and must be complied with; but he was also warned of the consequences that, if he failed to comply with the terms of the said 'Unless Order' his claims could be struck-out and this would bring an end to these proceedings.

 

14.3 As set out in the Record of Proceedings, dated 25 March 2016, I was not clear that the claimant's failure to comply with the earlier 'Unless Order' was deliberate. Given his said recent series of e-mails, I have to conclude that his continuing failure to comply with the 'Unless Order' is deliberate. He is a litigant-in-person but that does not allow him to ignore Orders of the Tribunal. It has been repeatedly explained to him, in the Records of Proceedings, dated 4 February 2016, 3 March 2016 and 25 March 2016 what was required to be done by him. I am satisfied that at the Case Management Discussion on 2 February 2016, Employment Judge Crothers did inform the claimant of the assistance which could be given to him by the Labour Relations Agency and/or Citizens Advice Bureau, as indicated in the recent e-mail by the respondents' representative making an application to strike-out the claimant's claims. Despite the terms of the 'Unless Order' dated 3 March 2016 and 25 March 2016, there is no evidence before me to suggest that the claimant has made any attempt to obtain any such advice and assistance in relation to these matters. I am satisfied that the claimant has been given every opportunity, taking into account that he is a litigant-in-person, to comply with the Tribunal's Orders and to therefore ensure that a fair trial is possible. In such circumstances, I am satisfied that to allow this matter to proceed, without compliance of the 'Unless Order', would result in severe prejudice to the respondents. Despite the Tribunal giving the claimant a further opportunity, following the 'Unless Order' dated 3 March 2016, to remedy the situation, the claimant has failed to do so. (See Tinker v Elliott)

 

14.4 In the circumstances, as set out above, I am satisfied, in the exercise of my discretion, and following the guidance as set out in the legal authorities referred to previously, but, in particular, in the case of Thind, that, it is in the interests of justice that I should grant the application of the respondents to strike-out the claimant's claims, pursuant to Rule 12(2) of the Rules of Procedure, without further consideration of the proceedings, the need to give notice or to hold any further hearing.

 

 

 

 

 

 

Employment Judge

 

 

Date decision recorded in register and issued to parties: