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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Duffy v PPS [2012] NIIT 01834_11IT (05 April 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/01834_11IT.html
Cite as: [2012] NIIT 1834_11IT, [2012] NIIT 01834_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1834/11
CLAIMANT: Stephanie Duffy
RESPONDENT: PPS
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant’s claim should not be struck-out.
Constitution of Tribunal:
Chairman (sitting alone): Mr S A Crothers
Appearances:
The claimant was present and was represented by Mr J Kennedy, Barrister-at-Law, instructed by John Fahy and Company Solicitors.
The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by the Departmental Solicitors Office.
Issue
1. The issue before the tribunal was whether the claimant’s claim should be struck-out.
Relevant Facts
2. (i) The claimant presented a claim to the Tribunal Office on 11 August 2011 claiming disability discrimination, sex discrimination, constructive dismissal, together with a claim under the Part-time Working Regulations.
(ii) A Case Management Discussion was convened on 9 November 2011 to:
(1) identify the precise issues which the tribunal has to consider;
(2) consider the use of witness statements and their exchange; and
(3) agree dates for a hearing.
The claimant had requested a postponement of the hearing by email dated
4 November 2001, however, a
direction was given that the Case Management Discussion should proceed and the
claimant was notified accordingly. Draft legal and factual issues had been
forwarded to the claimant on
6 October 2011 together with a Notice for Additional Information but she had
not replied to this correspondence. However, in the circumstances and given
that the claimant indicated in her email correspondence of 4 November 2011 that
a decision was awaited from the Equality Commission regarding legal
representation within approximately four weeks, the Chairman was satisfied that
in the circumstances, the Case Management Discussion should be adjourned until
10.00 am on 16 December 2011. The record of the Case Management Discussion
states:-
“On that date, the tribunal will expect both sides to have agreed the main legal and factual issues together with a draft timetable for the Case Management Discussion. Both sides are referred to the correspondence convening the Case Management Discussion dated 21 September 2011”.
(iii) Again, the claimant did not appear and was not represented at the Case Management Discussion held on 16 December 2011. At 20.21 pm on
15 December 2010 she emailed the Tribunal Office setting out her position regarding advice from the Equality Commission. It appeared from her correspondence that the claimant was having difficulty in obtaining responses from the Commission. In a telephone call made to her at 9.50 am on 16 December by the Tribunal Office, she confirmed that she would not be in attendance at the Case Management Discussion. Mr Brown, solicitor for the respondent, applied for the case to be listed on late January/early February to consider a strike-out application. However, in the circumstances in which the claimant found herself as represented in her correspondence to the tribunal, the Case Management Discussion was relisted for 20 January 2012 at
10.00 am in order for it to be timetabled for hearing. The tribunal concluded its record of proceedings by stating that:-
“By that stage, both parties must have agreed the legal and factual issues. Mr Brown’s application for a strike-out of the claimant’s case will be considered further at that Case Management Discussion”.
(iv) At the Case Management Discussion on 20 January 2012 the respondent was represented by Ms Murnaghan, Barrister-at-Law, instructed by the Departmental Solicitors Office. However the claimant did not appear and was not represented. She did not notify the tribunal of any reason as to why she was unable to attend. In these circumstances a strike-out notice was forwarded to the claimant giving her the opportunity to give reasons why a decision or order to strike-out her case should not be made. The notice stated that unless she provided reasons why the Order should not be made by
30 January 2012 her claim may be struck out.
(v) On 23 January 2012 the claimant wrote to the tribunal as follows:-
“Dear Sir/Madam
Thank you for your letter dated the 20th of January 2012, apologies for not being in attendance on the 20th of January 2012, as I was unwell.
As you know I have been actively seeking legal representation from a number of sources as I have found the support network offered by PPS towards victims of harassment to be non-existent and very much in favour of the respondent.
I can now advise, that Equality Commission have decided to not to give assistance however I can represent my-self whilst I actively seek other methods of obtaining representation. I must apologise for Friday, and must say that I have found this whole experience exhausting and very very stressful indeed, it is proving almost impossible gain the same support for the hearing that has been awarded to the respondents, in relation to my treatment when working for PPS.
Regards,
Miss Stephanie Duffy”
(vi) The claimant did not provide any medical evidence regarding her condition at this stage. She claimed before the tribunal hearing the strike-out application that she suffered from irritable bowel syndrome which meant that there was difficulty in her travelling from Londonderry to a hearing in Belfast by bus. She did not however deny that she had been at work in the Social Security Agency in Londonderry on 20 January, which was located some three to four miles from her residence in Maydown. There was no documentary evidence before the tribunal to support her claim that the Commission had refused to assist her and had notified her of this on 17 January 2012, or that she had booked leave, albeit provisionally, as she claimed in her evidence, in order to attend the Case Management Discussion on 20 January 2012. Furthermore there is no medical evidence before the tribunal which states specifically that the claimant is unable to travel to Belfast because of her medical condition. The claimant also acknowledged that she should have done something on the morning of 20 January 2012 to alert the tribunal of her non-attendance at the Case Management Discussion.
(vii) A further Case Management Discussion was arranged for 20 February 2012. Mr Brown, solicitor for the respondent, had forwarded correspondence to the Tribunal Office dated 16 February 2012 stating as follows:-
“I refer to the email which the claimant sent to the tribunal dated 23 January 2012 in which she stated that she had been unable to attend the CMD on 20 January 2012 because she had been unwell. Having directed that enquiries be carried out I have been instructed that the claimant was at work in the Social Security Agency on 20 January 2012. I should be grateful if you would bring this to the attention of the Chairman”.
A Case Management Discussion had already been arranged for 20 February 2012 but the claimant and the respondent had agreed to reschedule the CMD for a date between 14 and 16 March 2012. The claimant telephoned the Tribunal Office at 11.00 am on 17 February 2012 stating that she was at work and that she had no objection to a postponement of the CMD until March. She also stated that the Tribunal Office should leave a message on her house phone or with her father as she was in work and could not get a (telephone) reception in work.
(viii) The matter was subsequently brought to the attention of the Chairman who directed that the Case Management Discussion should go ahead as arranged in light of Mr Brown’s email referred to above. An email was forwarded to the claimant at 14.17 pm on 17 February 2012 which reads:-
“In light of the respondent’s representative’s email of 16 February 2012, (copy attached), the Case Management Discussion listed for 20 February 2012 will go ahead as arranged.
The Chairman will expect an explanation on Monday morning at the Case Management Discussion”.
The Case Management Discussion proceeded on 20 February 2012 and again the claimant did not appear and was not represented. Mr Brown, solicitor, on behalf of the respondent confirmed that the respondent was still pursuing the strike-out application. The Chairman was satisfied that a pre-hearing review should be listed for 11.00 am on 14 March 2012 to consider whether the claimant’s claim should be struck out. At the Case Management Discussion held on 20 February 2012, Mr Brown also indicated that he would be in a position to furnish evidence to the tribunal as to the claimant’s attendance at work on 20 January 2012.
(ix) On Tuesday 21 February 2012 at 08.19 am the claimant emailed the Tribunal Office stating:-
“I have only just received this email I was informed that I would be notified by telephone on friday 17 february if the case management discussion was to go ahead on Monday the 20th during a telephone conversation with your office on the morning of 17th of February, I had booked leave from my job in order to attend on Monday but had cancelled this late friday afternoon after having heard nothing from yourselves. Stephanie Duffy”
(x) At 13.45 pm on 21 February 2012, the claimant forwarded a further email to the Tribunal Office as follows:-
“Dear Sir/Madam,
I am writing in relation to the case management discussion which was held on the 20/02/2012, on Friday the 17th of February I contacted your office via telephone and spoke to Hollie, Hollie explained that PPS had requested and adjournment for the case management discussion and that the request was yet to be decided, given the short notice I specifically requested that I be contacted by telephone that day I was not contacted by telephone and an e-mail was sent to my home e-mail address which I do not have access to during working hours, as a result of having heard no contact from your office I cancelled the annual leave that I had booked from Monday before leaving work on Friday the 17th of February, I hope you can appreciate that I have other responsibilities with work and home life and was unable to put in place arrangements after 5.00 on Friday.
Mr contact details are as follows – Work Telephone _XXX XX XXXXX – Home Telephone – XXX XXXXXXXX – Mobile Telephone number –XXXXXXXXXX-
Work e-mail address XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXX
Or email address XXXXXXXXXXXXXXXXXXXXXX *
I apologise for any inconvenience as it was my full intention to be in attendance on Monday as I am keen to have the matter resolved with or without legal representation.
Regards
Stephanie Duffy”
(xi) Further correspondence was sent to the Tribunal Office by the claimant dated 7 March 2012 stating as follows:-
“Dear Sir/Madam,
I refer to your letter sent to myself dated the 21st of February 2012, within which Mr Brown refers to my attendance at work on the 20th of January 2012.
I can confirm that I was in attendance at my place of work on this date, but was unable to travel due to on-going health conditions for which I am currently being treated.
Please find enclosed confirmation of this from GP and further information on the symptoms regarding my condition.
Many Thanks.
Miss Stephanie Duffy”
The attached medical report from Dr Nigel Kyle of Limavady Health Centre also dated 7 March 2012 stated:-
“I can confirm that Miss Duffy has a history of anxiety, depression and irritable bowel syndrome, and is attending us regularly re the same.
* (REDACTED BY the OFFICE OF INDUSTRIAL TRIBUNALS)
I believe that she was due to attend a case management discussion on 20/01/12 in Belfast. She states that she was highly anxious on the day, and felt unable to travel”.
There is no medical opinion proffered in this medical report. It merely reflects the claimant’s medical history and refers to what she stated to the general practitioner.
(xii) The claimant worked a four day week with the Social Security Agency and offered no good reason as to why she could not have had better communication with the Tribunal Office.
(xiii) The claimant’s solicitors, John Fahy and Company, notified the tribunal in correspondence of 9 March 2012 that they had been instructed by the claimant in her case before the tribunal.
The Law
3. (1) The tribunal considered its powers to strike-out a claim under Rule 18 of the Industrial Tribunals Rules of Procedure 2005 as amended.
(2) Harvey on Industrial Relations and Employment Law (“Harvey”) summarises the legal position in Volume 3 P1 at 657ff as follows:-
“[657] There are two distinct situations. The first is where there has been intentional and contumelious default by the claimant. This may arise where there has been a failure to comply with a peremptory order of the tribunal, or where there has been conduct amounting to an abuse of the process of the tribunal. The most typical form of peremptory order is an ‘unless’ order, which specifies that unless the order is complied with by a particular time the claim will be struck out (see r 13(2)). But even in such cases, however, there is power to extend the time for compliance, although ‘it is a power which should be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are to be complied with and not to be ignored’ (Samuels v Linzi Dresses Ltd [1981] QB 115 at 126-127, per Roskill LJ).
[657.01] In Rolls ROYCE PLC V Riddle [2008] IRLR 873, EAT, Lady Smith pointed out that it is 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’ (para 20). Although striking out a claim is the most serious of outcomes for a claimant, she commented that ‘it is important to avoid reading the warnings in the authorities regarding its severity as indicative of it never being appropriate to use it’ (para 35). In that case, her Ladyship, on appeal, struck out the claimant’s unfair dismissal claim on the basis of intentional and contumelious default on his part, in particular that he had misrepresented to the tribunal that he could not attend the hearing on medical grounds, causing it to be adjourned, and had thereafter failed to give reasons as to why his claim should not be struck out, and had failed to take any steps to communicate with the tribunal or otherwise progress his claim in the four months prior to the PHR at which the strike out was considered. All of this indicated ‘a persistent disregard for the tribunal, its procedures, and the respondents’ interests’, making a strike out of the claim ‘inevitable’.
[658] As to the second situation, it must be shown ‘(a) that there has been inordinate and inexcusable delay on the part of the [claimant] or h is lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiffs or between each other or between them and a third party’ (Birkett v James [1978] AC 297 at 318, per Lord Diplock). In summary, therefore, if the delay is excusable, there can be no striking out; but if it is inordinate and inexcusable, a striking out order can only be made where it is also shown that a fair trial would be impossible or that there is or would be serious prejudice to the respondents.”
Submissions
4. Respondent’s Counsel Submissions
(i) The respondent’s Counsel urged the tribunal to strike-out the claimant’s claim for failure to actively pursue her case. Counsel referred to the fact that the claimant had prepared proceedings herself which was indicative of her ability to do so and pointed that some of the complaints made relates to dates in 2005 and that the respondent was being prejudiced in its ability to successfully defend the proceedings due to the claimant’s delay. Counsel further submitted that the claimant lacked credibility in relation to her explanation for not attending the Case Management Discussion on 20 January 2012 and the absence of candour on her behalf was demonstrated by the fact that she did not include in the correspondence to the tribunal subsequent to this Case Management Discussion the fact that he had been at work on 20 January. The Counsel acknowledged that there had been a possible mix-up on the Friday preceding the Case Management Discussion held on 20 February 2012 when the claimant had requested the tribunal to make contact by telephone. The Counsel submitted that the claimant’s assertion that she did not check her email account between 17-21 February, given her previous correspondence to the tribunal by email, was somewhat implausible. She submitted that it was also highly significant that Dr Kyle’s report provided no medical opinion whatsoever about the claimant’s ability to travel to Belfast on 20 January 2012. The Counsel also relied on the case of Rolls Royce v Riddell, referred to in the extract from Harvey and urged the tribunal to have regard to the manner in which the claimant had conducted herself.
Claimant’s Counsel Submissions
(ii) Counsel for the claimant submitted that the facts in the instant case could be distinguished from the facts in Rolls Royce plc v Riddell. In that case the claimant had not tried to attend on the day when the Tribunal Office got in touch with him. There was no good reason for him not to have attended so as he was fit to do so. Counsel submitted that the claimant in the Riddell case had also misrepresented the situation. However he submitted that in the instant case, although it was accepted that the claimant made no contact on 20 January 2012, she did contact the Tribunal Office soon afterwards explaining her absence. He further submitted that it was “setting the bar too high” to expect the claimant to state that she had attended work on 20 January 2012. He further relied on the fact that in the first two Case Management Discussions the claimant had had no warning from the tribunal and that the first warning followed the Case Management Discussion on 20 January 2012 when the strike-out notice was issued. He maintained that subsequent to the Case Management Discussion on 20 January the claimant had kept in good contact with the tribunal and referred to the letter from the claimant’s general practitioner and the contact she had made with the Tribunal Office on the Friday preceding the Case Management Discussion scheduled to take place on 20 February 2012. Counsel also submitted that there was no evidence on any intentional or contumelious default on behalf of the claimant and the fact that she now had legal representation meant that the case could be taken forward.
Conclusions
5. Having carefully considered the findings of fact together with the submissions by both parties’ representatives, and the relevant law, the tribunal concludes, on balance, that, having regard especially to the circumstances regarding the claimant’s telephone conversation with the Tribunal Office preceding the Case Management Discussion on 20 February 2012, the fact that she now has legal representation (having unsuccessfully attempted to obtain assistance from the Equality Commission), the claim should not be struck out. However, the tribunal is not impressed by the claimant’s conduct, especially in relation to the Case Management Discussion held on 20 January 2012 and the fact a general practitioner’s report was not furnished before 7 March 2012.
Chairman:
Date and place of hearing: 14 March 2012, Belfast.
Date decision recorded in register and issued to parties: