Industrial Tribunals Northern Ireland Decisions

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Cite as: [2009] NIIT 1011_08IT, [2009] NIIT 1011_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1011/08

CLAIMANT: James Gray

RESPONDENTS: 1. Charles Hurst (Dundonald)

2. Justin Kinnear (Manager)

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

The claimant’s claim against the respondents is struck-out, pursuant to Rule 18(7)(b) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 on the grounds that the claimant’s claim is misconceived.

(2) In the alternative the claimant’s claim against the respondents is struck-out pursuant to Rule 18(7)(e) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 on the grounds that there has been non-compliance by the claimant with the ‘Unless Order’ made by the tribunal dated 19 December 2008.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant did not appear nor was he represented.

The respondents were represented by Mr P Bloch, of Engineering Employers’ Federation Northern Ireland.

Reasons

1.1 This pre-hearing review was arranged to consider the respondents’ application, pursuant to Rule 18 of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 that the tribunal make a decision to strike-out the claimant’s claim against the respondents:-

on the grounds that the claimant’s claim was misconceived; and/or

on the grounds that there has been non-compliance by the claimant with the ‘Unless Order’ made by the tribunal dated 19 December 2008.

Under Regulation 2 of the said Regulations, misconceived is defined as ‘includes having no reasonable prospect of success’.

The claimant presented his claim to the tribunal on 11 July 2008, in which he made a claim of race discrimination, pursuant to the Race Relations (Northern Ireland) Order 1997 (the ‘1997 Order’). Insofar as relevant and material, he stated, in his claim form, at Paragraph 8.4:-

“Racial slurs from the managers making me feel alienated from staff members.

Nature of remarks suggested I was foreign.”

The respondents each presented to the tribunal their response to the claimant’s claim on 22 August 2008, in which each respondent denied liability in the form of a ‘blanket defence’.

3.1 A Case Management Discussion was arranged for 10 October 2008, by letter from the tribunal, sent to the parties on 11 September 2008. The claimant did not appear nor was he represented at the hearing and did not make any application for postponement of the said hearing. In the circumstances, I decided to proceed with the hearing, insofar as I was able to do so.

I was informed at this hearing, by the respondents’ representative that, by letter dated 21 August 2008, he had written to the claimant in which he had requested additional information, together with discovery of documents relating to the claimant’s claim. By letter dated 15 September 2008, the claimant had replied to the respondents’ representative in which he indicated that he had to confer with the Equality Commission before he could give such details and, at the date of the letter, he did not have confirmation they were indeed providing him with assistance. He indicated that he would be in touch with the respondents’ representative regarding such details concerning the request for additional information and/or discovery in due course.

Having considered the terms of the claimant’s application to the tribunal and the respondents’ response, but, in particular, the terms of the respondents’ representative’s letter dated 21 August 2008, I decided that it was appropriate, having regard to the terms of the overriding objective and in order to progress this matter, that I should make an Order for Additional Information and/or an Order for Discovery and Inspection, as set out below.

I therefore ordered that the claimant provide to the respondents the following additional information, namely:-

Full particulars of each and every racial slur from any member of the respondents’ employment, to include the nature of each and every remark or slur, the date of each and every such remark or slur and the names of anyone alleged to have witnessed the same alleged slur.

Full particulars of any remarks that suggested the claimant was foreign, to include the date of each and every such alleged remark, the name of each and every person in the respondents’ employment alleged to have made such a remark and the nature of each and every such alleged remark.

Full particulars of each and every allegation of racial discrimination, same or other than at (i) or (ii) above.

The date for compliance with the said Order was 14 November 2008.

I further ordered that the claimant provide discovery and inspection to the respondents’ representative of every document in the possession, custody or power of the claimant relating to the issues in this matter, including, any document upon which the claimant intended to rely at the hearing of this matter.

Again, the date for compliance with the said Order was 14 November 2008.

The terms for the said Orders were in similar terms to those set out in the respondents’ earlier letter, dated 21 August 2008, to the claimant referred to above.

3.2 By letter dated 16 October 2008, the claimant was sent a copy of the Record of Proceedings for the Case Management Discussion held on 10 October 2008 and his attention was drawn, in particular, to the orders made by the tribunal, as set out above.

By letter dated 19 October 2008, the claimant wrote to the tribunal, as he had been requested to do, to explain why he had not attended the Case Management Discussion on 10 October 2008. In his said letter dated 19 October 2008, he apologised for not being present at the said hearing. He also stated:-

“This was due to an unfortunate oversight; I am currently juggling attending interviews, completing enormous paperwork as part of my job search. This is coupled with the paperwork I received from your department along with attending to an elderly parent. As I’m sure you’ll understand it can be difficult to prioritise under such circumstances … .”

4.1 A further Case Management Discussion was held on 16 December 2008, which was attended by the claimant. At the hearing the claimant confirmed that he was not to be granted assistance by the Equality Commission. At this hearing, the claimant again suggested that he had not had time to deal with the matters set out in the Record of Proceedings and the tribunal’s correspondence, due to having to deal with paperwork and looking after an elderly parent. I reminded the claimant that this was his claim and he had to give it the necessary and proper attention, including complying with the Orders made by the tribunal, as set out above. At the date of this hearing, the claimant had still not replied to the said Orders. I warned him that, if he continued to fail to give the claim the necessary attention, then the tribunal would have no alternative but to consider striking-out his claim. The claimant indicated to me that he was intending to go to Canada at the end of December 2008. He was somewhat vague about how long he would be out of the jurisdiction or the reason for same. I pointed out to the claimant that the tribunal had already given him considerable opportunity to respond to the respondents’ Notices for Additional Information and/or Discovery and Inspection, which had been outstanding since 21 August 2008. The claimant did not dispute this. However, he sought until after his return from Canada to respond. I indicated to him that I was not prepared to do this, in view of the time that had already been given. I was also of the view that, with the appropriate degree of effort, on his part, even allowing for his trip to Canada, he should be in a position to comply with the Orders in a shorter period of time. I was conscious, as I reminded the claimant, that the interests of the respondents, also required to be considered.

4.2 The Orders made by the tribunal for Additional Information and Discovery and Inspection were, as set out above, to have been complied with by 14 November 2008; but this had not been done. However, in the circumstances, I came to the conclusion that the claimant should be given a further opportunity to comply with the said Orders. I did not think it would be appropriate for the tribunal to strike-out the claimant’s claim at this stage, without giving the claimant this further opportunity, if he wished to do so, to comply with the tribunal’s Order for Additional Information and/or Discovery and Inspection. To strike-out such a claim at that stage, would not, in my opinion, have been a fair and appropriate response to the continuing failure of the claimant to comply with the said order. I was satisfied that a reply, made at this stage, would still allow a fair trial to proceed. However, I was also satisfied that to enable the respondents to properly prepare their defence to the claimant’s claim in this matter, which had been set out in the claim form with little or no detail, they were entitled to have compliance with the said Orders; and, if the claimant continued to fail to comply with the said Orders a fair trial would no longer be possible in the circumstances.

4.3 I therefore decided that I would make an ‘Unless Order’ against the claimant, pursuant to Rule 18 of the Industrial Tribunals Rules of Procedure 2005; by which Order, unless the claimant complied with both the Order for Additional Information and the Order for Discovery and Inspection, as set out in the Record of Proceedings dated 15 October 2008, the claimant’s claim would be struck-out without further consideration of the proceedings or the need to give any further notice or to hold any further hearing, pursuant to Rule 13(2) of the Industrial Tribunals Rules of Procedure 2005. The time for compliance with the said ‘Unless Order’, was on or before 30 January 2009. At the hearing, I warned the claimant of the seriousness of his position and stressed to him the specific terms of the ‘Unless Order’. A copy of the Record of Proceedings dated 16 December 2008 and the ‘Unless Order’ dated 19 December 2008 was sent to the claimant by letter dated 19 December 2008.

5.1 By letter dated 6 January 2009, the claimant wrote to the respondents’ representative which was in purported compliance with the tribunal’s said ‘Unless Order’.

In the said letter the claimant stated, insofar as relevant and material:-

“I am writing to you regarding my contention on the above case.

Mr Kinnear’s comments that I feel were of suspicious racially context are as follows: ‘we don’t lowball here’, in my view he meant we don’t do those sort of foreign tactics here.

In light of that he never seemed to fully understand the negotiating and positive aspect of this tool when used in closing a retail sale.

In another comment; he asserted that quote ‘but James you are the only one who is bring[ing] complaints on the dealership’, as if to say me, and me alone. …”

He did not provide in his letter any discoverable documents – but suggested the respondent would have in its possession any documents relating to any such complaints referred to and he sought discovery of same.

5.2 By letter 13 January 2009, the respondents’ representative wrote to the tribunal and contended that the said replies, as referred to above, were wholly insufficient to answer the Orders of the tribunal. The respondents’ representative therefore requested a further Case Management Discussion to be convened to consider these matters. By letter dated 27 January 2009, the claimant was informed of the further Case Management Discussion to be held on 9 February 2009. On 27 January 2009, the claimant also sent an e-mail to the tribunal in which he stated:-

“I have a case on the 30^th against Charles Hurst; I regrettably will not be able to contest the case due to unforeseen circumstances that have taken me abroad on important business … .”

This e-mail crossed with the tribunal’s letter dated 27 January 2009.

5.3 Firstly, it is necessary to recognise that the claimant did not have a case on 30 January 2009; rather this was the date for compliance with the said ‘Unless Order’. At the Case Management Discussion on 9 February 2009, which the claimant did not appear and was not represented, I concluded from the said e-mail, that the claimant had gone abroad and this probably accounted for his non-attendance at this Case Management Discussion. However, as noted in the Record of Proceedings dated 9 February 2009, the claimant appeared to have gone abroad, without ensuring that any request for adjournment by him, as referred to by him in his e-mail had been granted by the tribunal.

5.4 At the said Case Management Discussion on 9 February 2009, I considered the terms of the reply from the claimant dated 6 January 2009. In essence, there had been some reply by the claimant to the terms of the ‘Unless Order’; but it was only a partial reply. In the circumstances, I did not think it would be appropriate, at that stage, to strike-out the claimant’s claim on foot of the ‘Unless Order’, given his limited reply to the ‘Unless Order’; and the fact that the claimant had given some notice to the tribunal that he had gone abroad, in circumstances where he clearly was aware of the compliance date of 30 January 2009 but which he mistakenly thought was the date of a further hearing.

In light of the foregoing, I therefore decided that I would extend the time for full and proper compliance with the ‘Unless Order’ until 6 March 2009. In addition, at the said hearing, Mr Bloch indicated that he now wished to make an application for a decision of the tribunal striking-out the claimant’s claim on the grounds that the claim was misconceived (which includes having no reasonable prospect of success), in light of the claimant’s claim and the replies to the ‘Unless Order’ which had been received to date.

5.5 In the circumstances, I decided that a pre-hearing review would therefore be arranged for 6 March 2009 to consider the issues set out at Paragraph 1 of this decision. The Record of Proceedings of the hearing dated 9 February 2009 was sent to the claimant by letter dated 11 February 2009.

6. The claimant did not attend this pre-hearing review nor did he make any application for a postponement of the hearing, having been sent Notice of Hearing dated 13 February 2009.

7. For the claimant to bring a claim for racial discrimination, pursuant to the Race Relations (Northern Ireland) Order 1997 it would be necessary for him to show that he had been treated less favourably on racial grounds – which are defined in Article 5 of the 1997 Order to mean:-

“Colour, race, nationality or ethnic or national origins.”

In his claim form, as set out above, the claimant alleged that racial slurs were made by his manager, making him feel alienated from staff members, which he contended were remarks which suggested the claimant was foreign. When further additional information was sought of the above, by the respondents’ representative and subsequently by order of the tribunal, the claimant relied, in essence, on the two alleged remarks by the manager, namely:-

“we don’t lowball here”, which he suggested meant we don’t do these sort of foreign tactics here; and

“but James you are the only one who is bring[ing] complaints on the dealership” which the claimant suggested was a reference to him and him alone.

8.1 The respondents’ representative submitted that merely to make the allegations, as set out above in the previous paragraph, was not enough and that the claimant’s claim was misconceived and, in particular, has no reasonable prospect of success. This ground of misconceived was introduced to replace the earlier ground of striking-out a claim, in circumstances where a claim was said to be frivolous. In the case of Balamoody v UKCC for Nursing, Midwifery and Health Visiting [2002] IRLR 288, it was held that to establish the ground of frivolous it had to be shown the case had no substance whatsoever, was utterly hopeless and bound to fail; whereas, by contrast, the term ‘no reasonable prospect of success’ imposed a lower standard. Indeed, it was suggested reasonable is synonymous with realistic. In the case of Ezsias v North Glamorgan NHS Trust [2007] IRLR 603, the Court of Appeal referred to the ‘classic situation’, where the power can be exercised to strike-out on the grounds that the claim has no reasonable prospect of success, in circumstances the tribunal concludes that, even on the facts advanced by the claimant, the case has no prospect of success as a matter of law. The Court of Appeal held that this power to strike-out on the above ground was not restricted to such a classic type of case; but equally it made clear that, if there were material disputes of fact and such disputes were something more than merely arguable, then it would only be an exceptional case the power could be exercised in such circumstances.

8.2 For the purposes of this application, and in the absence of any further additional information by the claimant and in the absence of any submissions by the claimant, it was necessary for the tribunal to assume the above remarks were made, as alleged, and further that the claimant could establish he was, for the purposes of this claim, of a different race/nationality to that of the manager. The tribunal was not satisfied that the alleged remarks were sufficient basis for the claimant to establish, in the absence of any further additional information, which he had been requested to give and had failed to do, that his claim had a reasonable prospect of success. The claimant had been asked to provide further information relevant to his claim, as set out in the terms of the tribunal’s Order, but had failed to do so and had limited himself to the partial reply to the ‘Unless Order’ as set out above.

As the Court of Appeal in the case of Madarassy v Nomura International PLC [2007] IRLR 246 made clear:-

“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicated one possibility of discrimination. They are not, without more, sufficient material from which the tribunal ‘could conclude’ on the balance of probabilities the respondent had committed an unlawful act of discrimination.”

In this case, the claimant had merely shown, for the purposes of this application a difference in treatment and a difference in race. This was not sufficient, in my judgment, for the claimant to establish that he had a reasonable prospect of success and I therefore concluded the claim was misconceived.

8.3 Under Regulation 3 of the said Regulations, the overriding objective of the Rules of Procedure is to enable tribunals and chairmen to deal with cases justly and dealing with a case justly includes, so far as practicable:-

(a) ensuring that the parties are on an equal footing;

(b) dealing with a case which are proportionate to the complexity or importance of the issues;

ensuring that it is dealt with expeditiously and fairly; and

saving expense.

A tribunal or chairman is required to give effect to the overriding objective when its exercises any powers given to it under the said Rules. In light of my conclusion, as set out above, that the claimant’s claim is misconceived I could see no reason, having regard to the terms of the overriding objective for requiring the respondent to defend such a claim. In the circumstances, in the exercise of my discretion, I concluded that the claimant’s claim should therefore be struck-out on the grounds that it is misconceived.

9.1 In light of my decision, as set out above, it was therefore not necessary for me to consider the alternative issue to be determined at this pre-hearing review, namely:-

“Whether the claimant’s claim should be struck-out for failure to comply with the tribunal’s ‘Unless Order’ dated 19 December 2008.”

9.2 Insofar as it was necessary for me to do so, I concluded that the claimant’s claim should be struck-out, in the alternative, on the grounds that the claimant had not complied with the said Order.

9.3 The said ‘Unless Order’ was to be complied with by the claimant by 30 January 2009. By his reply, dated 6 January 2009, the claimant gave a partial reply to the request for further information; but this was not a full and proper reply to the information which had been sought originally by the respondents’ representative in August 2008 and was the subject of the tribunal’s original Order for Additional Information, as set out in the Record of Proceedings of the hearing on 10 October 2008, dated 13 October 2008. In view of the partial reply, I decided at the hearing on 9 February 2009, as set out in the Record of Proceedings dated 11 February 2009, not to strike-out the claimant’s claim at that stage but to extend the time for proper compliance with the ‘Unless Order’ until 6 March 2009. On 6 March 2009, the claimant had still not provided any further information to that set out in his letter dated 6 January 2009.

9.4 In his reply dated 6 January 2009, the claimant did not provide any discoverable documents and, despite the said extension of time on 9 February 2009, did not provide any other discoverable documentation by 6 March 2009. In the circumstances, and in the absence of any discoverable documentation from the claimant by 6 March 2009, I came to the conclusion, for the purposes of this application, that he had no such discoverable documentation in his possession, custody or power. I therefore concluded the crucial issue, in relation to whether the claimant’s claim should be struck-out, related to his failure to provide the further additional information sought by the respondents’ representative, which I had earlier concluded, as set out in the Record of Proceedings of the hearing on 16 December 2008, dated 19 December 2008, was necessary for a fair trial for the respondents to properly prepare their defence to the claimant’s claim. At the hearing on 16 December 2008, as set out in the Record of Proceedings dated 19 December 2008, the claimant was present and I made it clear to him the seriousness of his position and stressed to him the specific terms of the ‘Unless Order’ and, in particular, that his claim would be struck-out, if he failed to comply with the Order, without further consideration of the proceedings or the need to give any further notice or to hold any further hearing. In view of his partial reply in his letter dated 6 January 2009, I did not immediately strike-out the claimant’s claim and extended the time to 6 March 2009, as set out above, for compliance with the said Order.

9.5 Despite the above extension, the claimant by the date of the hearing, had still not provided any further information on foot of the said Order. This information remains necessary for the proper preparation of the respondents’ defence to the claimant’s claim and thereby for a fair trial to proceed. The claimant has been given numerous opportunities, as set out above, to provide such information but has failed to do so. Despite the tribunal giving the claimant notice of hearing of this pre-hearing review by notice dated 13 February 2009, he failed to attend this pre-hearing review and did not provide any reasons why the decision to strike-out his claim for failure to comply with the said ‘Unless Order’ should not be made. In the circumstances, I therefore concluded, in the alternative to striking-out the claimant’s claim on the grounds that it was misconceived, the claimant’s claim should be struck-out by reason of his failure to comply with the said ‘Unless Order’ insofar as he had failed to provide the further information which he was required to provide, under the terms of the said Order. To enable a fair trial to proceed. I considered that to do so was a fair and appropriate response, in light of the claimant’s continuing and ongoing failure to provide the information the subject of the said ‘Unless Order’. In view of my conclusion, as set out above, that the claimant had no discoverable documentation to provide, I did not consider his ongoing failure to provide any such discovery, which was also the subject of the said ‘Unless Order’, was a proper ground to strike-out the claim.

10. The claimant’s claim is therefore struck-out on the grounds that the claim is misconceived and, in the alternative, on the grounds that the claimant has failed to comply with the terms of the ‘Unless Order’ dated 19 December 2008.

Chairman:

Date and place of hearing: 6 March 2009, Belfast

Date decision recorded in register and issued to parties: