Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/661_12IT.html
Cite as: [2012] NIIT 00661_12IT, [2012] NIIT 661_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 661/12

CLAIMANT: Jennifer Scott

RESPONDENT: 1. Rymor Inns Ltd

2. Danny Morton

3. Steven Cowan

DECISION ON A PRE HEARING REVIEW

The decision of the tribunal (Chairman Sitting Alone) is that unless the first named respondent fully complies with the Tribunal’s Order for Discovery by 14 December 2012, its response shall be struck out and the first named respondent shall be debarred from defending these proceedings.

The tribunal refuses the application to strike out the third named respondent’s response.

Constitution of Tribunal:

Chairman (Sitting alone): Ms J Knight

Appearances:

The claimant appeared in person.

The first and second named respondents did not appear and were not represented. The second named respondent has not lodged a response.

The third named respondent appeared in person.

ISSUE

1. Whether the first and third named respondents’ responses should be struck out and whether they should be debarred from defending these proceedings for failure to comply with the Tribunal’s order for Discovery by the extended time limit.

REASONS

2. At a Case Management Discussion (“CMD”) on 14 August 2012 the Chairman made an order against the first named respondent for discovery of “Documentation which has been in the care custody power possession or control of the first named respondent relevant to any of the issues in this case”, to be complied with by and not later than 26 August 2012.

3. At a further CMD on 30 October 2012 the President pointed out to the parties the importance and consequences of not complying with the tribunal’s Orders for Discovery and extended the time limit until 6 November 2012 for the respondents to either provide the following documents to the claimant or to explain why the said documents could not be provided:-

(1) The email from Philip Martin referred to at reply 43 of the respondents’ response to the claimant’s questionnaire.

(2) The company policy on pregnant workers and the duty of care towards them.

(3) The management rotas from 2 January until 30 January 2011 and from 17 April to 7 May 2011.

(4) Any documents upon which the respondent intends to rely at the hearing of this case which have not already been provided.

The President made other further case management directions and listed the case for hearing from 14-18 January 2013.

4. The claimant wrote to the Office of the Tribunals to advise that the respondents had not complied with the Order for Discovery by the extended time limit and Notice of this Pre Hearing Review was sent to the parties on 14 November 2012. By email dated 15 November 2012 to the Office of the Tribunals the third named respondent stated that “Further to me(sic) email yesterday I can confirm that further information has been posted to Miss Scott today and this now completes the order for discovery and Rymor Inns Ltd have complied with all information available to them at this time.” This email was signed “Steven Cowan on behalf and for Rymor Inns Limited”.

5. However at the Pre Hearing Review the claimant advised that the respondent had not furnished all of the documentation as per the President’s direction and that no explanation for the incomplete discovery had been given to her by the respondents. She stated that she had been provided with an email but that this was not the one referred to at reply 43 by the claimant; that the respondent had not furnished the company policy on pregnant workers but had stated that this is “inherent in the contract”; that she had been provided with management rotas from 16 January to 30 January 2011 and from 13-19 March 2011 but no rotas were provided for the period from 2 until 15 January 2011 or 17 April until 7 May 2011; finally the respondent had failed to furnish details of documentation upon which it intends to rely at the hearing of the case. On this basis she sought an order to strike out the responses of the first and third named respondents as she submitted that the documentation was required in order that she may properly prepare her case.

6. Mr Cowan accepted that full discovery had not been provided to the claimant in compliance with the Order. However he told the tribunal that the reason for this was that he had ceased to be an employee of the first named respondent, having been made redundant, in early October 2012. He stated that he had had to seek permission from the second named respondent, Mr Morton, to enter the first named respondent’s premises in order to access the documentation. He told the tribunal that the most recent emails sent from his work email address to the Office of the Tribunals about the claimant’s witness statements, had not in fact been sent by him as he no longer had access to his email account. With regard to the email provided, he confirmed that this was the email to which the respondent had referred in reply 43 and was the only email that he had been able to find. He stated that the first named respondent did not have a pregnancy policy and that he had forwarded all of the management rotas that he had been able to find on the computer. However he advised that he did not appear at the Pre Hearing Review on behalf of the first named respondent but only on his own behalf. He stated that although the first named respondent had asked him to continue as its representative, he had not yet made up his mind in this regard. He confirmed that the first named respondent was aware that the Pre Hearing Review was taking place and that he was not appearing on their behalf but had made no other arrangements to attend or be represented.

7. It is noted that the original Order for Discovery was made against the first named respondent. I am of the view that discovery of the documentation ordered is necessary for the fair disposal of the proceedings in the light of the legal and factual issues. It is noted that there has been partial compliance but I am not satisfied in all the circumstances that the tribunal can rely on the explanations put forward by the third named respondent at the Pre Hearing Review, as he no longer represents the first named respondent. Therefore I order, pursuant to Rule 13(2) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 as amended, that unless the first named respondent lodges with the Office of the Tribunals the outstanding documentation or an explanation in writing as to why the documents cannot be provided by 14 December 2012, the first named respondent’s response shall be struck out on the date of non compliance and the first named respondent shall be debarred from defending these proceedings, without the need for further notice or a Pre Hearing Review. The first named respondent should at the same time provide a copy of its response to the claimant. I decline to make any strike out or unless order against the third named respondent in the light of his representations that he no longer has access to documents held by the first named respondent.

8. The respondents are required to provide their witness statements to the tribunal and the claimant by 18 December 2012 and I give leave to the claimant to lodge a supplemental witness statement, if necessary, by 28 December 2012.

Chairman:

Date and place of hearing: 4 December 2012, Belfast.

Date decision recorded in register and issued to parties:

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