Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2006/294_06.html
Cite as: [2006] NIIT 294_6, [2006] NIIT 294_06

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THE INDUSTRIAL TRIBUNALS

CASE REF: 294/06

CLAIMANT: Danielle Khadija Tagg

RESPONDENTS: 1. Teletech UK Limited

2. Claire Stanfield

3. Yannick Robin

DECISION ON APPLICATION FOR REVIEW

The decision of the tribunal is that the decision to reject the response of the third respondent is revoked upon review, and the response of the third respondent is accepted.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Appearances:

The claimant was represented by Mr N Gillan, Equality Commission for Northern Ireland.

The third respondent was represented by Ms McManus, Solicitor, Bogue & McNulty, Solicitors.

Reasons:

The issue to be determined in this matter was whether the decision to reject the response of the third named respondent should be reviewed in the interests of justice, and the response accepted, notwithstanding the fact that it was received by the Office of the Tribunals outside the statutory period of 28 days from the date on which the third respondent was sent a copy of the claimant's claim.

Neither party called oral evidence.

.1 The claimant presented a claim to the tribunal on 7 March 2006, in which she named, inter alia, the third respondent as a respondent to the said claim.

.2 By letter dated 23 March 2006 the Office of the Tribunals wrote to the third respondent enclosing a copy of the claim. The letter clearly stated that the third respondent had 28 days to respond to the claim from the date of the letter, and that the final date for receipt of the response was 20 April 2006. The letter also advised the third respondent that if no response was received by that date, and no extension of time had been granted by a Chairman, the third respondent would not be entitled to resist the claim.

.3 The response was not received until 21 April 2006. No application for an extension of time had been received from the third respondent prior to 20 April 2006. In those circumstances, the response of the third respondent was rejected, pursuant to Rule 4(5) of Schedule 1 of the Industrial Tribunals Rules of Procedure 2005. By letter dated 5 May 2006 sent to the third respondent's representative, he was informed of the said decision to reject the response of the third respondent.

.4 By letter dated 10 May 2006, the third respondent's representative wrote to the tribunal in which he set out reasons for the delay in presenting the response of the third respondent to the claimant's claim, within the said time limit and seeking a review of the said decision to reject the third respondent's response in the interests of justice, pursuant to Rule 34(1)(a) of the said Rules of Procedure.

.5 As appears from the letter dated 10 May 2006 by the third respondent's solicitor to the tribunal, the third respondent suggests that he had difficulties in obtaining all relevant papers to enable his representatives to complete the response form until 11 April 2006. In the circumstances, as set out below, it was not necessary for me to consider further the reasons for the said difficulties referred to in the said letter. On 11 April 2006 the third respondent consulted with his representative and a response was drafted and signed on 19 April 2006. Ms McManus believed that the said response had been sent to the tribunal on 19 April 2006. However, I had to point out to her that it had been hand-delivered to the tribunal and was not delivered until 3.15 pm on 21 April 2006. This was outside the said time limit and resulted in the decision to reject the said response, as referred to above. Ms McManus was not in a position to explain why the completed response form, having been signed on 19 April 2006, was not in fact delivered to the tribunal until 21 April 2006. She accepted that clearly, in the circumstances, some error had taken place. Clearly, there was sufficient time for the response to have been presented to the tribunal, given that the third respondent had consulted with his solicitors on 11 April 2006 and the response had been drafted and signed by 19 April 2006. Further, there was clearly time from 19 April 2006 for the said response to have been lodged in time with the tribunal.

.6 The decision to reject the response was on the grounds that it had been presented out of time. In the said response, the third respondent denies the claim made by the claimant against him.

.7 The first respondent presented a response to the tribunal on 20 April 2006, which was accepted by the tribunal.

In Moroak t/a Blake Envelopes -v- DL Cromey (2005) IRLR 535, the Employment Appeal Tribunal expressed the view that there is power under Rule 34 of the Rules of Procedure 2005, where the interests of justice require, to review a decision made under Rule 6 not to accept a response served out of time and to direct that it be accepted. The test to be considered is whether it is just and equitable to do so. Mr Justice Burton referred to the Decision of the Employment Appeal Tribunal in the case of Kwiksave Stores Limited -v- Swain (1997) ICR 49, which sets out the factors to be taken into account in the exercise of the tribunal's discretion. All relevant factors must be taken into account, including the explanation for delay, the merits of the defence and the prejudice to each party. At the end of the day, the tribunal must reach a conclusion which "was objectively justified on the grounds of reason and justice". This Decision has been followed in a number of subsequent Decisions of the Employment Appeal Tribunal. In the case of Pendragon PLC t/a CD Bramall Bradford -v- Gary Corpus (UKEAT/0317/05CKEAT), it was held that the Chairman had erred in deciding that he had no discretion to review a default judgement because no good reason had been shown for the delay. Applying the principles in Kwiksave -v- Swain, although the reasons for delay must be considered, and the defence had to be shown to have merit, the Employment Appeal Tribunal made clear that the discretion is a broad and just and equitable one.

In my view, there is no good reason why the response of the third respondent was not presented to the tribunal in time, as it is clear that by 19 April 2006 all necessary steps had been taken to complete the response; and it clearly could have been delivered to the tribunal by the next day, namely 20 April 2006. However, it is apparent from the case law, to which I have referred above, that the reason for the delay is only one of the factors which must be taken into account in deciding whether the decision to reject the response should be reviewed in the interests of justice. The third respondent's defence is a complete denial of the alleged acts of sex discrimination and race discrimination made against the third respondent. In my view, the merits of such a defence could only be tested at a full hearing, and it would not be appropriate for me to reach any conclusion on the likelihood of its success on the basis of the claim form and the response of the third respondent. Clearly, if the response of the third respondent is not accepted, then the third respondent will not be able to take further part in the proceedings, in accordance with Rule 9 of the said Rules of Procedure. Obviously, to be unable to take a full part in the proceedings would be a matter of prejudice to the third respondent. Equally, it has to be recognised that to accept the response, on review, would involve some prejudice to the claimant. However, as Mr Gillan fairly acknowledged, the claimant will require to bring her claim to a full hearing in light of the fact that the first respondent has presented a response to the claimant's claim.

In considering and balancing the various factors referred to above, I have come to the conclusion that the interests of justice require the third respondent to be allowed to defend the claim made against him. I therefore revoke the decision to reject the response of the third respondent and order that it be accepted.

Chairman:

Date and place of hearing: 8 June 2006, Belfast

Date decision recorded in register and issued to parties: