Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  1707/13

 

CLAIMANT:                          Joanne McCaughey

 

RESPONDENTS:               1.         Board of Governors of St Mary’s Primary School,

                                                            Ballygawley

                                                2.         Council for Catholic Maintained Schools

                                                3.         The Principal of St Mary’s Primary School

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(1)       It is ordered that the application of the claimant for an extension of the            word-limit of the claimant’s witness statement from 5,000 words, as previously ordered by the tribunal, to 7,500 words is granted.

 

(2)       The tribunal refuses, at the hearing of this pre-hearing review, to strike-out and not admit in evidence, in whole or part, Paragraphs 8 – 15 of the claimant’s amended witness statement; and directed that any issue arising in relation thereto would require to be determined, if necessary and appropriate, at the substantive hearing of this matter.

 

(3)       Further interlocutory orders, as set out in this decision, were made by the tribunal arising out of the decisions of the tribunal, as set out above.

 

Constitution of Tribunal:

Employment Judge (sitting alone):                   Employment Judge Drennan QC

Appearances:

The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

The respondents were represented by Mr M Wolfe, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

 

Reasons

 

1.         This pre-hearing review was arranged to consider the claimant’s application to extend the word-limit in the claimant’s witness statement previously ordered by the tribunal, as set out in the Record of Proceedings dated 10 January 2014 and, if granted, to determine the word-limit to be imposed for the claimant’s witness statement and/or to strike-out and not admit in evidence at the substantive hearing of this matter the claimant’s witness statement, in whole or in part and/or to give such further case-management directions/orders, as might be necessary and appropriate in the circumstances.  Both representatives agreed to short notice of the hearing for this pre-hearing review (see further Record of Proceedings, dated 27 March 2014, of the Case Management Discussion on 21 March 2014).

 

2.         In my judgment, in the case of Carol Crockett  v  Police Federation of Northern Ireland and Another [Case Reference Nos:  557/13 and 1279/13] [2013] NIIT – 9 October 2013, I referred to an earlier decision made by me in the case of Briercliffe  v  Southern Health & Social Care Trust [Case Reference No:  74/12], when I stated, inter alia:-

 

“2.4     I am satisfied, before determining this matter, it is necessary to confirm that I do not consider the use of word-limits should become some form of sterile word number competition/bidding war between the parties; and that parties must not forget the purpose of imposing any form of word-limit is merely a tool to enable the tribunal to properly case-manage the substantive hearing, in light of the issues identified ... .”

 

3.         In light of the issues in this case, I am satisfied, which was not disputed by the respondents’ representative, that the standard word-limit of 5,000 words, previously ordered by the tribunal, was not sufficient in this matter, given the issues in this case.  I also recognise that the claimant’s analysis of the scoring etc by the selection panel in this matter, as set out in her witness statement, is likely to be of assistance to the tribunal at the substantive hearing of this matter.

 

            Subject to a further issue, to which I shall refer below, I was therefore prepared to grant the claimant’s application for an extension of the claimant’s amended witness statement from 5,000 words to 7,500 words. 

 

4.         The claimant’s representative confirmed that the claimant was not making a claim of indirect sex discrimination.  However, the respondents’ representative raised an issue in relation to Paragraphs 8 – 15 of the claimant’s amended witness statement.  These paragraphs related to certain events which had occurred in or about February 2013, between the claimant and the third respondent.  There was no dispute that these events were referred to in the claimant’s claim form but also in the statement of issues.  However, as became apparent at this hearing, there was an issue between the representatives – whether these events were in themselves an act of sex discrimination by the third respondent, for which the claimant was seeking compensation or were ‘background’ (see further Anya  v  University of Oxford [2001] IRLR 377) to the appointment exercise in respect of the Key Stage 2 position applied for by the claimant, for which she was unsuccessful. 

 

            The respondents’ representative contended that, if the events, set out in Paragraphs 8 – 15 of the claimant’s amended witness statement, were ‘background events’, then issues arose about the extent of their inclusion in the witness statement, amounting to some 500 words approximately, in a witness statement which was already in excess of the ‘standard’ word-limit.  He accepted that, if these events in themselves were distinct acts of sex discrimination, then it would not be an issue which I could determine at this pre-hearing review.  The claimant’s representative, after referring to the claim form and the agreed statement of issues, confirmed that these events were distinct acts of sex discrimination and were not ‘background events’.  The respondents’ representative expressed surprise and stated that, in light of the respondents’ Notice for Additional Information, dated 3 December 2013, and the claimant’s replies thereto, dated 18 February 2014, the respondents’ representatives had not understood/perceived these events to be distinct acts of sex discrimination; and, as a consequence, the reference to same, in the above paragraphs had been understood, by the respondents’ representative, to mean that they were ‘background events’, as understood in Anya. 

 

5.         I am satisfied that, in light of my detailed review of the legal authorities, as set out in my decision in Crockett, that, given the particular disputed issue between the parties, as referred to above, it would not be appropriate for me to determine them at this pre-hearing review; but, if necessary, it would be necessary for the tribunal at the substantive hearing to determine them (see further, in particular, the judgments in the case of:-

 

                        Beazer Homes Ltd  v  Stroud [2005] EWCA Civ 265; and

 

                        HSBC Asia Holdings BB and Another  v  Gillespie [2010] UKEAT/0417;

 

            which judgments are referred to in detail in my decision in Crockett, referred to above.

 

            In these circumstances, I decided not to make any decision to strike-out and/or not admit in evidence, in whole or in part, Paragraphs 8 – 15 of the claimant’s amended witness statement and I directed that any issue, arising in relation thereto, would require to be determined, if necessary and appropriate, at the substantive hearing of this matter. 

 

6.         If there had been no dispute between the representatives, as outlined above, and there had been agreement that the events set out in Paragraphs 8 – 15 were ‘background events’, I would have had to consider whether to strike-out, in whole or in part, these paragraphs.  I recognise that the amount of detail, set out in a claimant’s witness statement, frequently has a consequential effect on the level of detail in a respondent’s replying witness statement.  For the reasons, seen above, in the event, it was not necessary for me to determine this issue in this particular case.  However, if I had been required to do so, I would have come to the conclusion, given the overall length of the claimant’s amended witness statement, the particular length of these paragraphs and level of detail contained therein, that it would not have been appropriate for me, in the circumstances, to conduct what would have been, in essence, a ‘red pen type exercise’ at this pre-hearing review.  Indeed, in light of the foregoing, to have done so would have meant that there was a risk I would have fallen into the very trap, which is warned against in the case of Beazer Homes Ltd.

 

            Of course, the fact that I have decided it was not appropriate for me to make any decision in relation to the said paragraphs, at this pre-hearing review, for the reason and in the circumstances, as set out above, means that the tribunal, at the substantive hearing, is not restricted in any way in the exercise of its powers, including costs, at any substantive hearing, in relation to such matters/issues. 

 

7.         As a consequence of the foregoing, it was agreed, and I so ordered, that the               word-limit for the respondents’ witness statements could, if necessary and appropriate, be also extended to 7,500 words.  It was also agreed, and I so ordered, that the date for the exchange of the respondents’ witness statements should be extended to 18 April 2014. 

 

            The claimant’ representative again confirmed that the claimant is not making a claim of personal injury but only injury to feelings.  In support of that claim, the claimant intends to rely on the report from a Consultant Psychiatrist.  This is presently awaited.  The claimant’s representative indicated that the ongoing delay was due to the fact that the Consultant required to see the claimant’s General Practitioner’s notes and records, before finalising his report.  She informed me that, despite requests by the claimant’s representative, the claimant’s General Practitioner had not yet forwarded the relevant notes and records.  I emphasised to the claimant’s representatives that I was not prepared to await indefinitely, in the circumstances, for the General Practitioner to produce to the claimant’s representatives relevant GP notes and records, in circumstances where all relevant authorities had been given for their production and there was no other good reason for this ongoing delay.  The respondents’ representative, properly, in my judgment, indicated that, until the respondents had sight of this report, it was not yet known whether the respondents’ representatives would require to obtain their own medical report.  Hopefully, this will not be necessary.  However, he indicated that, if this occurred, it might be necessary for the respondents to make an application in relation to the listing of this matter and/or, in particular, in relation to whether the hearing should be in respect of liability only and not liability and remedy.  I made it clear that, if any such application had to be made by the respondents’ representative, then it should be made promptly and in accordance with the relevant Rules of Procedure. 

 

8.         Given that the claimant’s representative, at this hearing, has confirmed that the events of February 2013 are relied upon by the claimant as distinct acts of sex discrimination and not as ‘background events’, the respondents’ representative indicated that the respondents would require to consider this matter further and, in particular, may wish to raise further issues, including time-issues.  Following such further consideration, if the respondents’ representatives wish to rely on additional legal and/or factual issues, which were not the subject of the agreed statement of issues, attached to the Record of Proceedings dated 10 January 2014, as referred to previously, then the  representatives must prepare an agreed amended statement of issues promptly, which must be lodged immediately with the Office of the Tribunals.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:          31 March 2014, Belfast

 

 

Date decision recorded in register and issued to parties:

 

 

 

Notice

 

 

1.         If any party fails and/or is unable to comply with any of the above Orders, any application arising out of such failure or inability to comply must be made promptly to the tribunal and in accordance with the Industrial Tribunals Rules of Procedure 2005.

 

2.         Failure to comply with any of these Orders may result in a Costs Order or a Preparation Time Order or a Wasted Costs Order or an Order that the whole or part of the claim, or as the case may be, the response may be struck out and, where appropriate, the respondent may be debarred from responding to the claim altogether.

 

3.         Under Article 9(4) of the Industrial Tribunals (Northern Ireland) Order 1996, any person who, without reasonable excuse, fails to comply with a requirement to grant discovery and inspection of documents under Rule 10(2)(d) of the Industrial Tribunals Rules of Procedure 2005 shall be liable on summary conviction to a fine not exceeding Level 3 on the standard scale - £1,000 at 3 September 2007, but subject to alteration from time to time.

 

4.         A party may apply to the tribunal to vary or revoke any of the above Orders in accordance with the Industrial Tribunals Rules of Procedure 2005.