Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 2754/14

871/15

 

 

 

CLAIMANT: Sally Kelly

 

 

RESPONDENTS: 1. Skandia Restaurants Ltd

2. Andrew Davis

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that, after considering the arguments, it would be inappropriate and unnecessary to rule on the admissibility of the letter dated 16 October 2014 at this stage. The admissibility of that letter will be considered as part of the substantive hearing. It cannot easily or properly be separated from the issues to be determined at the main hearing. If the letter is eventually ruled inadmissible, after hearing the necessary evidence, the tribunal can and will rule that letter out of its consideration. In that eventuality, there will be no real possibility of prejudice to either party.

 

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mrs E Gilmartin

Mr R Hanna

 

Appearances:

The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

The respondents were represented by Mr S Doherty, Barrister-at-Law, instructed by J Blair Employment Solicitors.

 

Background

 

1. The claimant had been employed as a part-time supervisor by the first-named respondent.

 

2. She alleges disability, age discrimination and constructive unfair dismissal.

 

3. The case was previously case-managed. This pre-hearing review was fixed, at the request of and with the consent of both parties, to determine:-

 

"Whether or not a 'without prejudice' letter ('the letter') from the respondents' solicitor to the claimant on 16 October 2014 would be admissible as evidence."

 

That pre-hearing review had been listed following the decision of the Court of Appeal in McKinstry v Moy Park and Others on the basis that the same tribunal panel would hear both the pre-hearing review and the substantive hearing in relatively quick succession. That would minimise the possibility of delays arising from satellite litigation.

 

4. As indicated above, counsel for both parties had, in the course of the Case Management Discussion, asked for the admissibility of that letter to be determined at a separate pre-hearing review. Counsel for the claimant has, on further consideration, changed his position and has notified the respondents and the tribunal that his view was now that the admissibility of the letter is not suitable for a separate pre-hearing review. Counsel for the respondents continues to argue that it is suitable for separate determination at a pre-hearing review.

 

5. Detailed skeleton arguments and authorities were lodged by both the claimant and the respondents.

 

Relevant facts

 

6. The relevant facts necessary to determine, firstly, whether the admissibility of the letter is suitable for separate determination at a pre-hearing review and, secondly, if appropriate, to determine admissibility are quite short.

 

7. The claimant argues that the letter was part of a process designed by the respondents to drive her from her employment and that it was therefore part of the alleged discrimination on the grounds of both age and disability . The claimant also alleges that the letter was part of the reason for her resignation and was therefore part of her constructive unfair dismissal claim.

 

8. The letter has been referred to extensively in the skeleton arguments and indeed in oral argument in the course of the pre-hearing review. That pre-hearing review necessarily concentrated on whether or not it was appropriate to proceed with the pre-hearing review in this matter. The claimant argues that she was unrepresented when she received that letter. She argues that she was, in a significant sense, a vulnerable adult and that the letter had not advised her to seek advice or guidance. She further argues that the letter allowed her a very brief time to respond and that it demanded her resignation as part of the deal on offer. The claimant therefore argues that it was not a genuine attempt to reach settlement and that it was an example of inappropriate behaviour or ' unambiguous impropriety'.

 

9. The respondents argue that the letter was perfectly standard and was no more than a genuine attempt to resolve litigation. They therefore argue that the tribunal can reach a proper determination, ie that the letter was inadmissible in evidence, by simply looking at the terms of the letter.

 

Relevant law

 

10. The issue of when a tribunal is correct to determine a preliminary issue at a pre-hearing review has been well-rehearsed both at this level and in Court of Appeal decisions. In the McKinstry the Court of Appeal at Paragraph 39 stated:-

 

"The exercise of that power to deal with issues at a preliminary hearing however does need to be used sparingly; the essential criterion being whether there is a succinct knockout point capable of being decided after only a relatively short hearing. In SCA Packaging Ltd v Boyle [2009] UKHL 37, Lord Hope said at Paragraph 9: -

 

'It has often been said that the power that tribunals have to deal with issues separately at a preliminary hearing should be exercised with caution and resorted to only sparingly. This is in keeping with the overriding aim of the tribunal system. It was set up to take issues away from the ordinary courts so that they could be dealt with by a specialist tribunal as quickly and simply as possible. ... There are, however, dangers in taking what looks at first sight to be a short cut but turns out to be productive of more delay and costs than if the dispute had been tried in its entirety ... The essential criterion for deciding whether or not to hold a pre-hearing is whether ... there is a succinct, knockout point which is capable of being decided after only a relatively short hearing. This is unlikely to be the case where a preliminary issue cannot be entirely divorced from the merits of the case, or the issue will require the consideration of a substantial body of evidence. In such a case it is preferable that there should be only one hearing to determine all the matters in dispute'."

 

11. The potential delays and increased legal costs caused by satellite litigation is another factor to be taken into account when tribunals are determining the correct way to proceed.

 

12. That said, the Rules do provide for pre-hearing reviews. That statutory power to hold pre-hearing reviews is not in any way qualified. That power, of course, has to be exercised with caution and indeed ' sparingly'. However, the word ' sparingly' cannot mean ' almost never' or even ' absolutely never when there is any chance of this case ending up in the Court of Appeal'. The tribunal has to consider whether it is indeed an issue which can be severed from the substantive issues and which can be determined quickly and with a minimum of evidence. That is clearly the case where there is a distinct issue of, for example, length of continuous service or the date of claim, or indeed any issue clearly and directly related to the jurisdiction of a statutory tribunal. There is clearly a serious argument in those cases that a statutory tribunal cannot proceed properly unless its statutory jurisdiction is clear.

 

13. The present case throws up issues, not of jurisdiction, but of privilege which in the context of this case seems to inevitably require evidence-in-chief and cross-examination from the claimant and indeed the respondents' solicitor and whoever instructed that solicitor. The focus of the tribunal, at this point, must therefore be on whether or not there can be a short determination of this matter without inevitably overlapping with the evidence required for any substantive hearing.

 

14. Counsel for both parties have, with considerable industry, provided the tribunal with separate Lever Arch folders full of authorities in relation to the question of privilege. The tribunal has considered these authorities. However, the tribunal considers that the matter has been more than adequately covered in the recent decision of the Court of Appeal in McKinstry.

 

15. The Court in that case set out the law in relation to ' without prejudice' letters or communications in Paragraphs 21 - 37 of the decision. It is unnecessary to set those paragraphs out at this point in the present decision.

 

16. In the McKinstry case the claimant argued that a ' without prejudice' meeting was simply a device to get rid of the claimant and that there had been no genuine attempt to engage, dispute, compromise or settle outstanding issues. To that extent the McKinstry case is analogous to the case advanced on behalf of the claimant in the present case. In the present case the claimant advances the proposition that the letter was a device to drive her out of employment and that it had amounted to ' unambiguous impropriety' which, firstly, formed part of a discriminatory process; and, secondly, formed the part of the basis of her decision to resign.

 

17. Another issue which may arise in this case arises from part of the basis of the doctrine which excludes ' without prejudice' letters from admissibility. Part of that doctrine is based on an implied agreement between the parties that any such letter would in fact be excluded from admissibility. The claimant in the present case was unrepresented at the time of the receipt of the letter and alleges that she was vulnerable and that she was not advised to take further advice in relation to the contents of the letter and indeed was not allowed sufficient time to do so. In the McKinstry case the Court of Appeal stated at Paragraph 47:-

 

"Secondly, we consider that further exploration is required as to whether or not there was in reality any agreement on the part of the appellant, expressed or implied, to this meeting being 'without prejudice' notwithstanding the contents of Paragraph (iv) - (vi) of the agreed facts. Paragraph (iv) declares that in the presence of the second respondent Mr Cromie explained to the appellant that they sought to engage in a without prejudice meeting with him. Mr Cromie is a human resources officer with the respondent but apparently without any legal qualifications. Similarly, the appellant is without knowledge of the law. As Paragraphs (21) - (37) of this judgment illustrate, the concept of without prejudice discussion [or indeed letters - tribunal's note] of this judgment illustrate, the concept of a without prejudice discussion is a complex and challenging one even for lawyers and the judiciary."

 

The Court went onto state:-

 

"Without oral evidence, based purely on the stark statement of the agreed facts and absent some clear evidence that the meaning of without prejudice communications was properly explained to the appellant, we consider that it was not open to the tribunal to conclude that there was an express or implied agreement of that said discussions were to be without prejudice."

 

The same could be said to apply to ' without prejudice' letters.

 

18. Finally, the Court in the McKinstry case stated at Paragraph (52) that:-

 

"Fourthly, these matters seem precariously close to the central issue in this case. We question whether this preliminary hearing is going to be a shortcut to resolve an outstanding matter. The essential criterion for deciding whether or not to hold a pre-hearing is whether there is a succinct, knockout point which is capable of being decided after only a relatively short hearing. This is unlikely to be the case where a preliminary issue cannot be entirely divorced from the merits of the case, or where the issue will require the consideration of a substantial body of evidence. In such a case it is preferable that there should be only one hearing to determine all the matters in dispute. Can the issues we have raised be divorced from the merits of the full case and do they not require substantial evidence and cross-examination in order to resolved them?"

 

Decision

 

19. The tribunal is concerned that the issue of the admissibility of the letter cannot, contrary to the argument put forward on behalf of the respondents, be easily and effectively resolved by simply reading and analysing the letter as it stands and as it is worded. The claimant is entitled to advance the argument that the letter was part of a process of unlawful discrimination and also entitled to advance the argument that it was part of the trigger for her resignation. Those arguments may be valid or invalid; but at this stage she is entitled to advance them.

 

20. The proper determination of the admissibility of the letter will necessitate evidence and cross-examination from the claimant, from the respondents' solicitor and quite probably from whoever instructed that solicitor on the issue of that letter. There is therefore a serious risk that the pre-hearing review will involve extensive evidence which would overlap to an extent with the evidence required for the substantive hearing and which would take some significant time.

 

21. It would also be difficult to fairly determine the constructive unfair dismissal claim if, as the respondents suggest, the claimant may do more than say that she received the letter but not say what is in it. Given the need to observe the overriding objective and the need to avoid artificiality in these proceedings, that would be a difficult issue to resolve. If the respondents are correct the claimant would then be in a position of having to explain why the receipt of a letter formed part of her decision to resign without indicating what was in that letter. Apart from being a difficult issue to resolve, it is an issue which is apparently difficult to sever from the central issue in the constructive unfair dismissal claim.

 

22. The potential prejudice to the respondents, or indeed to the claimant, is in danger of being overstated in this matter. If, as the respondents argue, the letter was a standard of the type frequently used in this tribunal, and that it was issued with no malign or inappropriate motive, an experienced tribunal can be trusted not to allow itself to be prejudiced in this matter. If, on the other hand, the claimant's description of the letter is correct, or partly correct, the tribunal would be best placed to determine admissibility as part of the substantive hearing when it has had an opportunity to hear all the necessary evidence and to observe the performance of relevant witnesses under cross-examination.

 

23. The tribunal therefore determines that it would be inappropriate to proceed with a separate pre-hearing review at this stage and that the admissibility of the letter will be determined as part of the determination of the issues presented by these claims. If the letter is eventually deemed to be inadmissible, the tribunal will be able to exclude it from its consideration of the relevant issues to reach a proper determination on the claims of unlawful discrimination and constructive unfair dismissal.

 

 

 

 

 

 

 

Vice President:

 

 

Date and place of hearing: 16 October 2015, Belfast

 

 

Date decision recorded in register and issued to parties: