Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 1146/05;

93/06;

799/06

CLAIMANT: Hayment Sharma

RESPONDENTS: 1. Department of Finance and Personnel

2. Les Mahoney

3. Ken Moorcroft

4. Jim Coffey

5. John Johnston

The decision of the tribunal is not to strike out the claimant's claims.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr S A Crothers

Appearances:

The claimant appeared in person on 25 June 2007. He was represented by Mr McQuitty, Barrister-at-Law, instructed by the Pro Bono Unit at the resumed hearing on 2 July 2007.

The respondents were represented by Mr Coll, Barrister-at-Law, instructed by the Departmental Solicitor's Office.

DECISION ON A PRE-HEARING REVIEW
1. The issue before the tribunal was as to whether the claimant's claims should be struck out first of all on the basis that the manner in which the proceedings has been conducted by the claimant has been scandalous, unreasonable or vexatious and in the alternative that the claims should be struck out as they have not been actively pursued.
2. It was common case that Case Management Discussions had been scheduled for hearing on 13 October 2006, 13 November 2006, 11 January 2007 and 22 February 2007. The claimant had not attended previous Case Management Discussions and on three occasions up to 27 April 2007 claimed that he had a medical appointment on the same day as the Case Management Discussions. The claimant did not attend the Case Management Discussion arranged for 11 May and at that stage the respondents' counsel applied for the claims to be struck under Rule 18(7) (c) and (b) of the Industrial Tribunals Rules of Procedure 2005. The claimant was therefore given an opportunity at the hearing on 25 June 2007 and 2 July 2007 to give reasons orally to the tribunal as to why a Strike Out Order should not be made.
3. The claimant gave evidence and the tribunal was presented with medical evidence by the claimant. The tribunal also took into account relevant items of correspondence from the claimant including correspondence received by the tribunal office on 29 June 2007.
4. The tribunal, having analysed the evidence insofar as same is relevant to the issue before it, it makes the following findings of fact:-

(i) The Equality Commission ceased their support for the claimant at some point between their correspondence to the tribunal office on 24 November 2006 and further correspondence to the tribunal on 3 January 2007 confirming that the Commission was no longer on record in respect of the proceedings and requesting that all future correspondence should therefore be sent to the claimant's home address. These two items of correspondence were copied to the respondents' representatives. The claimant was unsure as to whether the Commission's support was withdrawn before or after he had withdrawn a complaint on 6 December 2006 relating to racist comments on notes left in a locker, which he admitted in evidence to have written himself. The tribunal accepts however that the claimant was left without legal representation and that he made efforts to contact solicitors' offices and ultimately the Pro Bono Unit in the High Court. He relied upon on a combination of this factor and medical appointments he claimed were arranged for 11 January 2007, 22 February 2007 and 26 April 2007 as his reason for failure to attend the Case Management Discussions arranged for those dates. In addition he claimed that he was attending a funeral on 26 April 2007. He also claimed that he had not obtained notification of the further Case Management Discussion on 11 May 2007. The Case Management Discussion had been arranged for 3.00pm on that date and notification had been forwarded to the claimant's usual address. The claimant gave unconvincing testimony regarding the reason for his failure to attend the Case Management Discussion on 11 May and referred initially to receiving a telephone conversation at 9.30am on 11 May from the Labour Relations Agency. However, in his further evidence on 2 July he claimed that the telephone call was received on 14 May at 9.17am. The tribunal finds, on the balance of probabilities, that the claimant was aware of the Case Management Discussion arranged for 3.00pm on 11 May but chose not to attend.

(ii) The tribunal was shown a medical report from the claimant's GP, Dr B Chakravarty dated 19 January 2007 and written confirmation from Trevor Hussey, Community Psychiatric Nurse, Belfast Health and Social Care Trust that the claimant had attended him due to depression and anxiety on 15 February 2007, 22 March 2007, 13 April 2007, 8 May 2007 and 21 May 2007. The claimant also spoke to Mr Hussey on 24 May 2007 by telephone. None of these dates coincides with the dates for Case Management Discussions and there was no medical evidence before the tribunal indicating that the claimant was unable to attend the hearings for medical reasons. The tribunal found the claimant's evidence equivocal and unsatisfactory in relation to his explanations for non-attendance at the Case Management Discussions from 11 January 2007 until 11 May 2007.

5. The tribunal heard submissions from both counsel. Mr Coll referred to the unsatisfactory nature of the claimant's evidence and suggested that he was being untruthful in relation to the circumstances surrounding his non-attendance at the Case Management Discussion on 11 May 2007. He further submitted that no medical evidence had been produced by the claimant to substantiate his non-attendance at three Case Management Discussions, which happened to coincide with medical appointments. Referring to his admission that he had written certain racist comments himself and then withdrew a complaint relating to same, Mr Coll submitted that this fact, combined with his submission regarding the Case Management Discussion of 11 May 2007 meant that a fair trial of the case was not possible. He also submitted that striking out the claimant's claims was a proportionate response to the manner in which the proceedings had been conducted by the claimant. On the alternative basis that the claim should be struck out as they had not been actively pursued, Mr Coll relied on the House of Lords case in Birkett -v- James 1978 AC297, HL to argue that a tribunal could strike out a claim where there had been delay that was intentional or disrespectful or abusive to the court or where there had been inordinate and inexcusable delay which gave rise to a substantial risk that a fair hearing was impossible or which was likely to cause serious prejudice to the respondent. Mr McQuitty referred the tribunal to Harvey on Industrial Relations and Employment Law, ("Harvey") Volume 5 at 653ff. He brought four matters to the tribunal's attention:-

1. There must be a conclusion by the tribunal not simply that a party has behaved scandalously, unreasonably or vexatiously but that the proceedings have been conducted by or on his behalf in such a manner.

2. Even if such conduct is found to exist, the tribunal must reach a conclusion as to whether a fair trial is still possible.

3. Even if a fair trial is not considered possible, the tribunal must still examine what remedy is appropriate, which is proportionate to its conclusion.

4. Even if the tribunal decides to make a striking out order, it must consider the consequences for the claimant.

6. The law in relation to the issue including the case law, is adequately set out in Harvey. In addition to the section relied on by counsel for the claimant, the tribunal also had regard to paragraph 629FF insofar as same was relevant to the issue before it. The relevant rules are contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. Rule 18 (7) states as follows;-

"subject to paragraph (6), a Chairman or tribunal may make an Order – …..

(c) striking out any claim or response (or part of one) on the grounds of the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent, as the case may be, has been scandalous, unreasonable or vexatious;

(d) striking out a claim which has not been actively pursued;".

7. Having considered the evidence together with the submissions and applied the principles of law to the findings of fact the tribunal concludes as follows:-

(i) As the House of Lords decision in Anyanwu -v- Southbank Students' Union 2001 IRLR 305, HL, reveals discrimination cases should not be struck out except in the very clearest circumstances. Although to an extent the manner in which the claimant conducted the proceedings could be described as unreasonable and to an extent vexatious as being an abuse of process, the tribunal, following the case of DE Keyser Ltd -v- Wilson 2001 IRLR 324 EAT considers that a fair trial is still possible and therefore refuses to strike out the claims on this basis.

(ii) The tribunal also carefully considered Rule 18 (7) (d) (supra) in relation to whether the claim should be struck out as it had not been actively pursued. The tribunal concludes that any delay was not substantial and that the respondents have not been seriously prejudiced. Furthermore, there is not a substantial risk that a fair hearing is impossible. The tribunal accepts that some, but not all of this delay, was due to the claimant being unable to secure legal representation, and in all the circumstances considers it inappropriate to strike out the claims on this basis.

Chairman:

Date and place of hearing: 25 June 2007 & 2 July 2007

Date decision recorded in register and issued to parties: