Industrial Tribunals Northern Ireland Decisions

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Huddleson v Macmillan/Cab Partnership [2008] NIIT 572_08IT (06 November 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/00572.html
Cite as: [2008] NIIT 572_08IT, [2008] NIIT 572_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 00572/08

CLAIMANT: Paul Nelson Huddleson

RESPONDENT: Macmillan/Cab Partnership

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is not to strike out the claimant’s claim.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr S A Crothers

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr B McVeigh from the Citizens’ Advice Bureau.

THE ISSUES

1. Whether by virtue of Rule 18(7) (c) and (d), of Schedule 1 to the Industrial Tribunal Rules of Procedure 2005:-

(1) The claimant’s claim should be struck out on the basis that the manner in which the proceedings have been conducted by him has been scandalous, unreasonably, or vexatious;

(2) Alternatively whether the claim should be struck out as it has not been actively pursued.

THE FACTS

2. It was common case that the Case Management Discussion had been arranged on 1 September 2008. Time had been allowed for both parties to consider the issues relating to the Case Management Discussion. The tribunal was to reconvene at 2.00pm. The claimant did not appear. A subsequent Case Management Discussion was held on 5 September 2008. Again the claimant did not appear and was not represented. Consequently, on 10 September 2008, Notice of the Pre-Hearing Review was sent out to both parties. Already a record of the Case Management Discussion held on 5 September had been forwarded to both parties on 8 September 2008.

The claimant forwarded correspondence to the tribunal on 10 September 2008 and 15 September 2008 which included a medical report from his general practitioner outlining his medical condition since 1996. Mr McVeigh was shown copies of this documentation. The claimant apologised for not appearing at the reconvened Case Management Discussion on 1 September 2008. In his correspondence of 10 September 2008 the claimant asserted that he had not received notification of the Case Management Discussion to be held on 5 September 2008 until the day of the hearing.

SUBMISSIONS

3. The tribunal heard brief submissions from both parties. Mr McVeigh submitted that the case should be struck out based on the events in the Case Management Discussions held on 1 September and 5 September 2008. The claimant relied on his medical condition together with his further submission that he felt that he had a reasonable case of disability discrimination.

THE LAW

4. (1) In relation to the first issue before it the tribunal had regard to Harvey on Industrial Relations and Employment Law Volume 5 at T647ff and in particular to paragraph 653 where, referring to Burton J’s Judgement in Bolch v Chipman [2004] IRLR 140 EAT, and taking account of the judgements in Bennett v London Borough of Southwark [2002] EWCA Civ 223 and De Keyser Ltd v Wilson [2001] IRLR 324 EAT, four matters are to be addressed as follows:-

(i) 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.

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

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

(iv) Even if the tribunal decides to make a Striking Out Order, it must consider the consequences for the claimant.

(2) The tribunal also considered the House of Lords decision in Anyanwu and Anor v Southbank Students’ Union and Anor [2001] IRLR 305HL, which held that discrimination cases should not be struck out except in the very clearest circumstances.

(3) In relation to the second issue before it, the tribunal considered the recent decision in Rolls-Royce Plc v Riddle [2008] IRLR 873 EAT. In that case Lady Smith, in her judgement, pointed out that cases of failure to pursue a claim actively will fall into one of two categories:-

(i) Where there has been “intentional and contumelious” default by the claimant; and

(ii) where there has been inordinate and inexcusable delay such as to give rise to a substantial risk that a fair trial would not be possible or there would be serious prejudice to the respondent.

CONCLUSIONS

5. The tribunal is satisfied, on the basis of the documentary evidence before it and facts as found, and having considered the submissions of both parties together with the relevant case law referred to above, that the claimant’s claim should not be struck out and that a fair trial is still possible. The case will therefore be re-listed as soon as possible for a Case Management Discussion.

Chairman:

Date and place of hearing: 27 October 2008, Belfast.

Date decision recorded in register and issued to parties: