Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2006/326_06.html
Cite as: [2006] NIIT 326_6, [2006] NIIT 326_06

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THE INDUSTRIAL TRIBUNALS

CASE REF: 326/06

CLAIMANT: Wesley Noel Smylie

RESPONDENT: Jim Smyth

DECISION ON APPLICATION FOR A REVIEW

The decision of the tribunal is that the decision, not to accept the response of the respondent in part is revoked upon review, and the response of the respondent, with his letter dated 6 July 2006 attached thereto, is accepted.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant did not appear and was unrepresented.

The respondent appeared in person.

Reasons

The issue to be determined in this matter was:-

"Whether the decision not to accept the response in part is to be reviewed in the interests of justice and the response accepted."

The response of the respondent was not accepted in part on the grounds that the respondent had not detailed the grounds on which he intended to resist the claimant's claim of disability discrimination and breach of contract, as required under Rule 4(4)(d) of Schedule 1 of the Industrial Tribunals Rules of Procedure 2005; but the response of the respondent to the claimant's claims of unfair dismissal, unauthorised deduction from wages and his claim for the Working Time Regulations were accepted. The respondent was so informed by the tribunal by letter dated 9 May 2006. In that letter he was also informed of his right to apply for a review of the above decision on the grounds that either:-

(a) the decision was wrongly made as a result of an administrative error; and/or

(b) the interests of justice require such a review.

By letter dated 19 May 2006, the respondent made an application for a review of the said decision on the grounds that the interests of justice required such a review. The said application was brought within the relevant 14 day time limit, as required under the Rules of Procedure. In his letter dated 19 May 2006, the respondent stated, inter alia, that he felt that he had responded to all allegations made in the claim and he did not see where the claimant had alleged disability discrimination. In relation to the detail of the grounds upon which he intended to resist the claim for breach of contract he did not see what allegation he had failed to address. He further stated that he would now like the opportunity to respond to the claim of disability discrimination and breach of contract.

At this hearing, the respondent indicated that he had not noticed at Paragraph 8.1 of the claim form the claimant had ticked the box relating to disability discrimination; and further had not appreciated from the contents of the claim form that the claimant was making a claim of disability discrimination. He further indicated that, although he had not specifically referred to breach of contract, he had indicated in his response his defence in relation to the claimant's claim for holiday pay and overtime. He accepted that he had not expressly referred to the issue of notice pay. The respondent referred again to the matters set out in his letter dated 19 May 2006; but also stated that he had found some difficulty in understanding the letters, which had been sent to him by the tribunal, relating to the claim that had been accepted by the tribunal, but also the response that was required to be made to him to those claims. He had not appreciated, from either the claim form or the tribunal's correspondence, the precise nature of each and every claim that had been accepted by the tribunal. The tribunal's letter, accepting the claimant's claim, did not identify the claims that had been accepted. In the absence of such identification, given that the respondent is unrepresented, I have some sympathy for the respondent's lack of appreciation. It is also to be noted that, although the claimant had ticked the box relating to disability discrimination and had referred in the body of the claim form to stress/depression, he nowhere else specifically referred to the issue of disability discrimination. Of course the claimant, like the respondent, is also unrepresented The respondent frankly acknowledged that he had not realised that there was a claim of disability discrimination, until it had been pointed out to him. He further said that, if he had realised, he would have addressed it specifically in the response form. Indeed, he thought that he had dealt with every matter alleged by the claimant in his claim form in the said response made by him.

Whenever this matter comes on for hearing, the respondent will be able to take part in the proceedings in relation to the claimant's claim of unfair dismissal and for unauthorised deductions from wages and under the Working Time Regulations, since his response to these claims has been accepted. However, he will not be able to take part in the proceedings, save as permitted under Rule 9 the Industrial Tribunals Rules of Procedure 2005, in respect of the claimant's claim for breach of contract and disability discrimination, unless the decision not to accept his response in respect of those claims is revoked on review. Despite the potential overlap between claims for unauthorised deductions of wages and those made under the Working Time Regulations and breach of contract; in respect of the claimant's claim for notice pay/overtime/holiday pay he would only be permitted to defend those claims as claims for unauthorised deduction of wages and under the Working Time Regulations, but not as claims of breach of contract. This would clearly result in a most unsatisfactory hearing given the necessity to maintain the above distinction between the said claims – despite the overlap. Indeed, in relation to the claim for breach of contract, although it has not been expressly referred to by the respondent, it is only the claim for notice pay that had not been specifically dealt with in the terms of response. The respondent produced during the course of the hearing, after seeking guidance from the Labour Relations Agency, a letter dated 6 July 206, setting out the details of the grounds of his defence to the claimant's claim in relation to disability discrimination, but also his claim for notice pay. In my view, the merits of such a defence to these claims can only be tested at a full hearing and it would not be proper for me to reach any conclusion on the likelihood of its success. There is no doubt, however, that the prejudice to the respondent, if he is not permitted an opportunity to contest the claims of the claimant, in relation to breach of contract and/or disability discrimination, would be very great. The respondent has made his claim on the grounds that the interests of justice require such a review. After weighing and balancing the various matters set out above, I have come to the conclusion that the interests of justice require that the respondent be given an opportunity to defend the claimant's claim of disability discrimination and breach of contract. In so doing, I am particularly conscious of the fact that the respondent is unrepresented and not legally qualified. He had put a response in time, which was detailed; and I accept that he did not fully appreciate that the above claims had been made by the claimant. I am also conscious that not to allow a person to take part in the proceedings is a matter of some seriousness (see further the decision of the EAT in the case of Morak t/a Blake Envelopes v Cromie [2005] IRLR 535 and Pendragon V Copus [UK EAT/0317/05]). Also it seems to me that to not to permit the respondent to take part in these proceedings in the above circumstances, in relation to the claim of disability discrimination and breach of contract, would have implications for the respondent's rights to access to justice under the Human Rights legislation; but also the requirement of the tribunals to deal with a case justly under the terms of the overriding objective. I further am of the view that the prejudice to the respondent in refusing to revoke the decision to reject the response in part would outweigh any prejudice to the claimant.

I therefore revoke the decision not to accept the response in part. I further order that the response is now accepted; but with attached thereto the letter, dated 6 July 2006, produced by the respondent, at the hearing, setting out details of his response to the claim of disability discrimination and breach of contract.

Chairman:

Date and place of hearing: 6 July 2006, Belfast

Date decision recorded in register and issued to parties: