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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Lyapin v Denise Greatorex University of Ulster [2011] NIIT 00539_11IT (28 December 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00539_11IT.html
Cite as: [2011] NIIT 00539_11IT, [2011] NIIT 539_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 539/11
CLAIMANT: Dr Rail Lyapin
RESPONDENTS: 1. Denise Greatorex
2. University of Ulster
WRITTEN REASONS FOR PRE-HEARING REVIEW DECISION
The claims were struck-out in their entirety in an oral decision delivered at the end of the pre-hearing review. They were struck-out under Rule 18(7)(e) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 for non-compliance with an ‘Unless Order’ which had been issued to the claimant on 8 August 2011. The following are the reasons for that oral decision.
Constitution of Tribunal:
Vice President (sitting alone): Mr N Kelly
Appearances:
The claimant did not appear and was not represented. An interpreter had been provided at public expense and her time was wasted.
The respondents were represented by Mr B Mulqueen, Barrister-at-Law, instructed by Mr O McCullough, of the University of Ulster.
Relevant facts
1. The issues before the pre-hearing review were:’
“(1) Whether the claim should be struck-out, in whole or in part, for failure to comply with the terms of the ‘Unless Order’ dated 8 August 2011.
(2) Whether, if the claim is not struck-out, a Deposit Order should be made in accordance with Rule 20 requiring the claimant to pay a deposit not exceeding £500.00 as a condition of being permitted to continue these proceedings, if the tribunal concludes that the contentions of the claimant have little reasonable prospect of success.”
2. The claimant lodged a claim in the tribunal on 8 February 2011 against both respondents. A claim of race discrimination was accepted for processing by the tribunal. That claim contained very little detail. Under the heading ‘Details of Claim’ the claimant stated:-
“I applied on [sic] job of research associate and successfully passed interview in March 2009. Claiming I had no full rights to work in UK, which rights were confirmed by Home Office, lawyer, Department of Works & Pensions etc (2009) – Denise Greatorex. Preventing me to compete [sic] for continuance of job in order to give the job to people from UK (2010, 2011) – Denise Greatorex. Mobbing and blackmailing – Inna Litvin, Bozena, Marc Anderson. Mobbing and blackmailing: calling on mobile in the night, sending text messages and mail to me and my wife – unknown people.”
3. The respondents lodged a response in the Office of the Tribunals on 2 March 2011. That response stated, inter alia, that there was at that time a potential redundancy situation in the claimant’s work area due to the withdrawal of external funding and that the process of consultation in relation to voluntary severance or redeployment of staff, including the claimant, was ongoing. It further stated that the claimant had submitted a written request on 25 February 2011, more than two weeks after the date of his claim, requesting a voluntary severance package. The respondents denied the allegation of race discrimination.
4. Following a Case Management Discussion on 26 May 2011, Orders for Discovery and Inspection and for Additional Information were issued on 31 May 2011. The Order for Discovery and Inspection was in standard terms. The Order for Additional Information required the claimant to provide answers to the following questions by 22 June 2011:-
“1. Fully describe the circumstances of your alleged dismissal, giving the effective date of dismissal.
2. Fully describe the steps you went through in raising your grievance. Identify the focus of the grievance (ie verbal or written), who it was raised with and the outline of your grievance.
3. Describe each and every act of harassment. Identify who harassed you, on what occasion and in what manner.
4. Identify all individuals with whom you raised concerns over your alleged harassment.
5. Describe each and every act of discrimination. Identify who carried out the acts of discrimination and the type of discrimination.
6. Identify any comparators who received more favourable treatment.”
5. The claimant responded on 7 July 2011, some two weeks out of time, with an e-mail comprising some two and one half closely typed pages which failed to address the specific questions which had been put to him in the Order.
6. After a further Case Management Discussion on 5 August 2011, an ‘Unless Order’ was issued to the claimant in the following terms:-
“TAKE NOTICE THAT UNLESS you properly comply with the Order for Additional Information dated 31 May 2011 by 5.00 pm on Friday 26 August 2011 your claim to this tribunal will be struck-out for failure to comply with the Order, without further notice or hearing.
A copy of the Order for Additional Information dated 31 May 2011 is attached hereto.”
7. The claimant attended the Case Management Discussion on 5 August 2011 by telephone with the assistance of an interpreter. It was made plain to the claimant in the course of that Case Management Discussion; and it was further confirmed in the written Record of Proceedings, which was sent to the claimant, that:-
“The claimant was advised that the reply to the Order must issue to Mr McCullough; it must address, in numbered paragraphs, each question in turn and it must give clear and specific answers to each question. It was made clear to the claimant that, if he failed to do so, his case would be struck-out.”
8. The claimant also forwarded a bizarre e-mail to the tribunal on 5 August 2011 in which he appeared to suggest that this case involved the Russian Secret Services, military rocket fuel and blackmail. He stated that his father and grandfather had been killed by the KGB.
9. More than three weeks later the purported replies to the Order were again forwarded outside the time-limit specified in that Order. They were in an e-mail dated 29 August 2011. The e-mail comprised four closely typed pages which did not address the specific questions put to the claimant in sequence, in numbered paragraphs or at all. The four pages could fairly be described as rambling and incoherent. The claimant alleged, for example, that he had been ‘attacked’, that his ‘documents and money were stolen’, that his ‘laptop and mobile were irreversibly destroyed’. He further stated:-
“I will have to open criminal cases against some of the University employees and partners, which will cost University quite a lot of money, prestige etc. Moreover, I feel obliged to prepare URGENTLY information to anti-terrorist and other similar UK, EU and international authorities about all what happened: the criminal threats which are coming from some of the University employees, their colleges and partners.”
He stated that colleagues had explained to him that:-
“That explosions can happen, which can kill me and others.”
In relation to the second-named respondent he stated:-
“The people who make basic mistakes in money ten times more, and ignore all the questions about this, such people are not specialist at all, they are corrupted criminals or dangerous ignorants, together with those, who help them to steal. This is criminal case with the threats to me and my family safety and damages to health. Some people who are straight [sic] connected with the University of Ulster discriminate, steal the knowledge and results, make threats, blackmail etc.”
10. The respondents applied on 30 August 2011 for a pre-hearing review to consider an application to strike out the claim for non-compliance with the ‘Unless Order’.
11. The pre-hearing review was heard on 21 November 2011.
12. The claimant did not attend and did not notify the tribunal that he would not be attending the pre-hearing review. The tribunal therefore incurred the unnecessary additional expense of booking a Russian interpreter to assist the claimant in this matter. The claimant furnished no explanation for his non-attendance and did not apply for a postponement.
13. At the pre-hearing review, Mr Mulqueen, for the two respondents, applied for the matter to be struck-out on the basis the claimant’s clear failure to comply with the Orders issued by the tribunal and, failing that, for a Deposit Order to be made under Rule 20.
Relevant law
14. It is generally accepted that the power to strike out a case should be used cautiously in discrimination cases. The present case includes a claim of race discrimination. In Anyanwu v Southbank University & Southbank Student Union [2001] ICR 391, Lord Steyn stated:-
“ … the importance of not striking-out such claims as an abuse of process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive and their proper determination is always vital to our pluralistic society. In this field, perhaps more than any other, the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.”
However, Lord Hope made it clear in the same case that he was not completely ruling out Strike out Orders in discrimination cases:-
“Nevertheless I would have held that the claim should be struck-out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail.”
15. The Anyanwu decision obviously concerned an application to strike out a case on the merits, on the basis that it had no reasonable prospect of success. The present case is slightly different in that the application for a strike out is on the ground that the claimant has wilfully and culpably failed to comply with the directions of the tribunal in what was clearly a peremptory order, ie the ‘Unless Order’ issued on 8 August 2011.
16. As indicated, previously, the issues set down for hearing before me did not include:-
“Whether the claim should be struck-out under Rule 18(7)(b) of Schedule 1 to, and Regulation 2 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.”
However, if that had been one of the issues before me I would have had no hesitation in striking out this claim as having no reasonable prospect of success. While caution should be exercised when considering the strike out of a discrimination claim (see Anyanwu) it is plain that such an Order can be appropriate in certain cases, see:-
ABN AMRO Management Services Ltd v Hogben [UKEAT/0266/09DM];
Iteshi v London Borough of Hammersmith and Fulham [UKEAT/0491/10DM];
Sood v Governing Body of Christ the King School [UKEAT/0449/102T];
Community Law Clinic Solicitors Ltd v Methuen [UKEAT/0024/11]
Having carefully examined the pleadings and correspondence in this case, I am satisfied that the claim has no reasonable chance of success. This is a tribunal of fact and law in relation to those types of employment claim for which it has been given statutory jurisdiction. The tribunal’s time and resources should not be wasted on arguments, whether in claims or responses, which are fanciful or simply speculative.
17. Turning to the issues listed for determination in this pre-hearing review, in Rolls Royce PLC v Riddle [2008] IRLR 873, the EAT stated that it was quite wrong for a claimant:-
“To fail to take reasonable steps to progress his claim in a manner that shows he has disrespect or contempt for the tribunal and/or its procedures.”
It further stated that:-
“It is important to avoid reading the warnings in the authorities regarding its severity (the severity of a Strike out Order) as indicative of it never being appropriate to use it.”
18. In the present case the claimant was employed as a research associate in the University of Ulster. He can therefore safely be assumed to be an educated man who is capable of understanding the nature of litigation and of understanding the demands that litigation places upon those who choose to lodge a claim in an employment tribunal. Despite that, his claim form was vague and non-specific, to the point where no useful response could be lodged by either respondent. Furthermore, the claimant failed to provide any meaningful response to a very clear and very simply expressed Order for Additional Information issued following the Case Management Discussion on 26 May 2011. The claimant was presented with yet a further opportunity in the form of the ‘Unless Order’ which issued on 8 August 2011. Again, despite very clear directions given to him, both orally and in writing in the form of the Record of Proceedings and in the terms of the ‘Unless Order’ itself, the claimant totally failed to address the questions which had been put to him for answer. It is also noteworthy that in relation to both the original Order for Additional Information and the ‘Unless Order’, the claimant, without any adequate explanation or any prior application for an extension of time on his part, failed to comply with the clear time-limits set by the tribunal for replies. Finally, the claimant did not attend the pre-hearing review on 21 November 2011, did not provide any explanation for his failure to attend and did not apply for any postponement.
19. Given the peremptory nature of the ‘Unless Order’ and given the manner in which the claimant has chosen to conduct this litigation, the claim is struck-out in its entirety. There would be absolutely no point in a tribunal having the power to strike out a claim under Rule 18(7)(e) if it were not proper to do so in the circumstances of the present case.
Vice President:
Date and place of hearing: 21 November 2011, Belfast
Date decision recorded in register and issued to parties: