Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/1565_08.html
Cite as: [2009] NIIT 1565_08IT, [2009] NIIT 1565_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 01565/08

CLAIMANT: Queenie Morrison

RESPONDENTS: 1. Supervalu Centre

2. Supervalu Strabane

3. Kavanagh Retailing (NI) Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the issue for determination as to whether the claimant has complied with Article 19 of the Employment Rights (NI) Order 2003 should be determined by the tribunal at a full merits hearing of the claimant’s claim.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Kinney

Appearances:

The claimant appeared and was represented by Mr McCrossan.

The first and second named respondents did not appear and were not represented; the third respondent appeared and was represented by Miss Best BL, instructed by, Copeland McCaffrey, Solicitors.

1. A Pre-Hearing Review was arranged for 14 May 2009 to consider the following issue:-

“Whether the claimant is entitled to present a claim to the Industrial Tribunal in view of the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 regarding the requirement to send a grievance in writing to the employer and to wait 28 days before presenting a claim to the tribunal.”

2. The need for a Pre-Hearing Review had been agreed at an earlier Case Management Discussion on 25 February 2009. In the Record of Proceedings of that Case Management Discussion at paragraph 5 I have recorded that the Pre-Hearing Review was appropriate as there was no need to hear substantive evidence in relation to the merits of the case in determining the point on the grievance. Either the claimant handed in a letter of resignation or she did not, and either that written letter contained sufficient information to constitute a written grievance or it did not. At that Case Management Discussion Mr McCrossan did not disagree with holding a Pre-Hearing Review on behalf of the claimant.

3. At the Case Management Discussion I explained to Mr McCrossan the requirement to make a grievance and what the duty entailed. I referred Mr McCrossan to the EAT decision of Canary Wharf v Edebi and I asked that Miss Best provide a list of her authorities before the hearing of this Pre-Hearing Review. She has done so.

4. At the outset of today’s hearing Mr McCrossan said that he was very confused. He had provided considerable information to the respondents and documents on discovery. He had not received any in return. The respondents made the case that there was no discovery required specific to today’s hearing. Mr McCrossan said it would be very difficult to deal with this matter by dealing only with the resignation letter. The tribunal would need to consider the route taken by the parties and the interaction of the parties. He pointed out that there was a dispute between the parties as to whether or not a written grievance was ever presented.

5. Mr McCrossan with the agreement of Miss Best produced a bundle of documents to me. This included the letter of grievance the claimant alleged she had sent to the respondent. I rose for a short period to allow the parties to consider the position. When the tribunal resumed Mr McCrossan said that he would proceed with today’s hearing but only under duress. He maintained that he was very confused as to how the process had arrived at this hearing today and did not feel that this hearing was a logical outcome. He felt that he was being denied fair play. Mr McCrossan said he would have to explain the context of the resignation letter. That would be difficult if he was constrained to providing evidence of the letter alone. He wished to show how the situation had been handled and the way in which the entire matter had been conducted. He referred to the claimant’s allegation of the forgery of documents. There was a need to ascertain facts to prove the claimant’s case that she had provided a written grievance. He submitted that credibility was a core issue in determining whether the written grievance had in fact been sent. He also said that evidence would be relied on of the context for the claimant’s grievance of sex discrimination and disability discrimination contained in her dismissal letter. He did not wish to proceed with the hearing today.

6. Miss Best on behalf of the respondents firstly submitted that the respondents had endeavoured to provide all the documents requested by the claimant that were relevant to today’s hearing. She pointed out that Mr McCrossan had agreed to the holding of a Pre-Hearing Review of the earlier Case Management Discussion and had also agreed that the issue required no substantive evidence apart from the existence or otherwise of the written grievance and its contents. She contended that the matters now raised by the claimant were not relevant to whether or not a resignation letter had been sent. She conceded there may be wider issues as to credibility but that did not assist the claimant in relation to the need to comply with the statutory grievance procedure. Miss Best submitted that any such issue should have been highlighted to the respondent at an earlier stage. Miss Best referred to Canary Wharf. She said that it was appropriate for the tribunal to see whether a grievance had been properly raised and this could be done by the tribunal today. The complaints before the tribunal were of sex discrimination, disability discrimination and constructive dismissal. Miss Best accepted there may be a need for an analysis of context. However, the tribunal’s role is to review the resignation letter. It is the only written document. The tribunal should ask itself whether on a fair interpretation would the employer be aware of the issues to be complained of. Miss Best contended the tribunal was more than capable of dealing with those issues today. If a tribunal were to determine that the grievance had not been sent then issues of context would not arise.

7. I have considered carefully the submissions of the parties. I have also invited the parties to make any submissions they wish on the guidance on the Court of Appeal, in particular in the cases of Ryder v Northern Ireland Policing Board, Cunningham v Ballylaw Foods, Faulkner & Others v BT and Coleman v Norbrook Laboratories.

8. The parties have attended for hearing today. The respondent has witnesses. They are in a position to proceed. However, based on the submissions made by Mr McCrossan it is clear that the enquiry required of the tribunal is more wide ranging than originally thought. Mr McCrossan has indicated that he does not wish to proceed with a Pre-Hearing Review today. On the basis of the submissions that I have heard the tribunal, in order to dispose of the issues surrounding the statutory grievance procedure, will require to hear a considerable amount of substantive evidence which is likely to overlap with evidence at a main hearing. Mr McCrossan, whilst originally in agreement with a Pre-Hearing Review is now opposed to such a review. He wishes to call wide ranging evidence. With some reluctance, I have reached the conclusion that the appropriate course for the tribunal is not to proceed with a Pre-Hearing Review today. The grievance issues should be dealt with as part of the substantive case in front of a full tribunal panel. In reaching this decision I have borne in mind particularly the guidance in the Court of Appeal and the warning that a Pre-Hearing Review to isolate out a discrete point, can often be a treacherous shortcut.

9. Miss Best then made a Costs Application under Rule 40 of the Industrial Tribunals (Rules of Procedure) 2005. She submitted that the tribunal may make a Costs Order when on the application of a party it postpones the day or time fixed for or adjourns a hearing including a Pre-Hearing Review. Under Rule 40(3) the tribunal may make a Costs Order where the claimant has acted unreasonably and abusively. Miss Best said that the respondent had come to the Pre-Hearing Review to deal with the sole issue of the grievance. Both parties had agreed no other evidence would be required. The claimant had changed the parameters of that original agreement. The claimant was now saying that further evidence was needed to set the grievance letter in context. Miss Best contended that if this matter had been raised at the beginning it would have avoided unnecessary costs. Miss Best further contended that the claimant had acted unreasonably and was conducting proceedings abusively. These issues had first arisen on the morning of the hearing. The tribunal has a discretion to award costs. In this case the respondent was facing substantial costs which could have been easily avoided. She considered it was appropriate that orders be made against the claimant. The costs sought were for £780 + VAT for the attending solicitor and £500 for counsel.

10. Mr McCrossan in response said that he had considerable difficulties in the way in which the process had been conducted. He had anticipated that as a result of the earlier Case Management Discussion and his requests for documents that he would have been provided with more documentation than he had received. He pointed out that he was not legally qualified but felt that things had not gone according to plan and that they should not have been here today. He pointed to his correspondence with the respondents. He maintained that issues of credibility and the validity of documents had been pointed out at an early stage to the respondents. He did not think an order for costs was appropriate.

11. I asked to hear evidence of Mrs Morrison’s means. Mrs Morrison gave evidence to say that she worked three days a week for 24 hours and earned £150 per week. She has no other income and no other benefits. She does not receive a carer’s allowance in relation to her caring role. She has no investments or savings.

12. I have considered the application for costs made. In order to determine whether a costs order should be made the tribunal should first determine whether or not there are grounds for making such an order and secondly if so whether the tribunal should exercise its discretion to make such a costs order. In making this decision the tribunal is entitled to take into account the paying parties ability to pay.

13. I do not consider that it is appropriate in this case that the claimant should have a costs order made against her. Miss Best has not made a wasted cost application and I do not consider that Mrs Morrison’s actions have been unreasonable. The issue of the statutory grievance and dismissal procedures have generated a huge amount of case law since their introduction and are complicated and difficult areas to deal with. They have recently been repealed in England. I consider that the postponement of the issue is required not least in light of the guidance provided by the Court of Appeal in Ryder and in the following cases. In any event even if it were appropriate to consider making a costs order I would have declined to exercise my discretion to make such an order having regard to the claimant’s ability to pay any such order made.

14. With the parties I then addressed what further steps could be taken to progress this case.

15. One of the issues in the case is disability discrimination by association. It follows the decision of the European Court of Justice in Coleman v Attridge Law. That case has been reheard in the Employment Tribunal in England and has now been appealed to the Employment Appeals Tribunal. In this case all issues between the parties are in dispute. Disability is not conceded, nor the relationship between the carer and the disabled person. In these circumstances the parties have agreed that it is appropriate to see if further guidance is available from the EAT in the reasonably near future. This may assist the parties in focusing on the relevant issues and may shorten the eventual hearing time of this case. I am therefore not listing this case for its full hearing but re-listing it for a further Case Management Discussion on Tuesday 22 September 2009, at 9.30 am to consider any progress made in the Coleman case.

The parties have also agreed that they would make more progress in relation to interlocutory matters. I have explained again in detail the nature of Notices for Discovery and Additional Information and the purposes for which Discovery and Additional Information should be sought and obtained. The parties have agreed that they will now issue any Notices for Discovery and Additional Information by 11 June 2009 and each will provide replies to any such Notices by 2 July 2009.

17. Finally, Miss Best submitted that the appropriate respondent in the case is the third named respondent, Kavanagh Retailing (NI) Ltd. It is conceded that they are the employer in this case. Mr McCrossan has confirmed that he makes no separate case for discrimination against either Supervalu Centre or Supervalu Strabane and is in agreement that they should be dismissed from the case. I therefore order that the first named respondent and second named respondent be dismissed from this case.

Chairman:

Date and place of hearing: 14 May 2009, Belfast.

Date decision recorded in register and issued to parties: