Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1763/14

 

 

 

CLAIMANT: Karen Fitzpatrick

 

 

RESPONDENTS: 1. Department for Social Development

2. Geraldine Devine

3. Judith Woodburn

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the respondents' application for a strike-out of the claimant's claims is refused.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge B Greene

 

Appearances:

The claimant was neither represented nor in attendance.

The respondents were represented by Mr S Doherty, Barrister-at-Law, instructed by The Departmental Solicitor's Office.

 

Sources of evidence

 

1. This matter was dealt with by way of submission. The tribunal had regard to the claimant's claim form, the respondents' response, Records of Proceedings of two Case Management Discussions, the decision in relation to a Deposit Order and correspondence from the parties to the Office of the Tribunals.

 

The claim and defence

 

2. The claimant has brought claims for discrimination on the grounds of disability and detriment by reason of her part-time working status. The respondents deny the claimant's claims in their entirety. At a Case Management Discussion on 20 May 2015, Mr A Sands, then counsel for the respondents, indicated to the tribunal that it was the intention of the respondents to bring an application to strike out the claimant's claims on the ground that the claimant's conduct of her claims had been vexatious and unreasonable.

 

3. By letter of 22 May 2015 the respondents' representative applied to the Office of the Tribunals under Rules 11 and 19 of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 to strike out the claimant's claims on the ground that:-

 

(a) the manner in which the claimant has conducted these proceedings has been unreasonable and vexatious; and

 

(b) the claimant has persistently failed to comply with directions or orders of the tribunal.

 

In 33 paragraphs the respondents' representative set out their reasons for the making of the application.

 

The issues

 

4. Accordingly, a pre-hearing review was scheduled for 1 July 2015 to determine:-

 

"Whether the claimant's claims should be struck out on the grounds that -

 

(a) the manner in which the claimant has conducted these proceedings has been unreasonable and vexatious; and

 

(b) the claimant has persistently failed to comply with the directions and orders of the tribunal."

 

5. As the claimant was neither in attendance nor represented the tribunal sought the respondents' views as to whether the matter should proceed or not in the absence of the claimant.

 

6. The respondents' representative did not have any objection to the pre-hearing review continuing in the absence of the claimant.

 

7. Although the claimant was not in attendance nor represented she had not advanced any reason as to why she was not able to attend today, I decided therefore to proceed with the pre-hearing review in her absence.

 

Adjournment of the pre-hearing review

 

8. The claimant in her correspondence has indicated that 1 July 2015 was not one of the dates which she had nominated as being available. I therefore invited comments from the respondents' representative as to whether the pre-hearing review should be adjourned to another date.

 

9. The respondents' representative was opposed to the pre-hearing review being adjourned. He indicated that the claimant was aware of the date for the further hearing on 1 July 2015 for a number of weeks, following the making of a direction on 20 May 2015 that a hearing should take place on 1 July 2015. At the time the date was directed by the tribunal the claimant was scheduled to be at work. Subsequent to the notification to the claimant of the hearing fixed for 1 July 2015 the claimant applied for and was granted leave on 2 June 2015. The respondents' representative contended that there was no evidence before the tribunal that the claimant was not able to attend today and therefore it was not appropriate to adjourn this matter.

 

10. Having considered the correspondence from the claimant, including the information provided to the claimant by the Office of the Tribunals as to how she might seek to have today's date changed, with which the claimant has not complied, I refused the application to adjourn. The claimant has been aware of today's hearing since receipt of the Record of Proceedings of the Case Management Discussion held on 20 May 2015 which was sent to her by letter dated 29 May 2015. Since that date she has not offered any explanation as to why she is not able to attend. Nor has she provided any evidence to suggest that she had a previously booked holiday or event which would prevent her from attending today.

 

Submissions

 

11. Mr Doherty, on behalf of the respondents, stated to the tribunal that the respondents were seeking to have the claimant's claims struck out in their entirety. He indicated that he was making the application under Rule 18(7)(c) and (d) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

 

12. Mr Doherty also referred the tribunal to certain paragraphs from Harvey on Industrial Relations and Employment Law, T at Paragraphs [647] - [653] and [661] and the decision of the EAT in the case of Rolls Royce PLc v Riddle [2008] IRLR 873 at Paragraphs 18, 20, and 35, which set out the legal considerations applicable in a strike-out application.

 

13. In support of his application, the respondent's representative made the following points that:-

 

(1) a strike-out was a extreme remedy and should be the exception rather than the rule;

 

(2) it is clear from the decision in Rolls Royce PLc v Riddle that it is an option which is open to a tribunal to make;

 

(3) this claim, which was lodged on 24 September 2014, has in 10 months progressed at a snail's pace;

 

(4) there have been applications for seven hearings, of which four occurred and the claimant has not attended any of them;

 

(5) had the claimant attended then the concerns which she has articulated could have been addressed and the matter would have progressed at a quicker pace;

 

(6) she seems intent in conducting her case through correspondence which in the respondent's representatives' view is not in compliance with the overriding objective which obliges the parties to co-operate with the tribunal in bringing the matter on for hearing;

 

(7) it is unreasonable for the claimant to be so restrictive in the dates that she says that she is available to deal with hearings before the tribunal;

 

(8) the claimant has chosen to bring these proceedings, not only against her employer but against two fellow employees and they have their entitlement to have this matter dealt with as soon as is reasonably possible;

 

(9) the claimant seems to think that she is the only person to be taken into account in arranging dates for hearings and dealing with matters preparatory to bringing this claim on for hearing;

 

(10) the claimant's behaviour has been unreasonable. Whilst accepting that a party is not obliged to attend the hearings, the respondents' representative said her failure to attend was evidence of her unreasonable behaviour;

 

(11) the claimant also alleged that not only the respondents but the tribunal had behaved unreasonably in sending or using e-mails to contact her. Mr Doherty stated that the duration of this matter has caused the respondents expense and disruption and that it is in his view scandalous behaviour on the part of the claimant; and

 

(12) her correspondence is unreasonable and that this is an appropriate case in which the tribunal could exercise its discretion to strike out the claimant's claim in its entirety because the claimant's behaviour was such as to have crossed the 'Rubicon'.

 

14. The claimant was not here to make any submissions but I had regard to her correspondence and the points she made in that correspondence.

 

The law

 

15. The law is set out in those extracts from Harvey on Industrial Relations and Employment Law, referred to above, and in the case of Rolls Royce PLc v Riddle [2008] IRLR 873.

 

Application of the law and the findings of fact to the issues

 

16. It is not in dispute that a strike-out is a draconian measure to be avoided if there are other appropriate steps that could enable the claim to continue and permit the tribunal to continue to do justice to both sides.

 

17. The respondents are not advancing the case that it is not possible to have a fair hearing in this claim.

 

18. I am satisfied that a strike-out is not appropriate in this particular set of circumstances and I refuse the respondents' application. In so concluding, I had regard to the following matters:-

 

(1) Of the four hearings to date, two of them have been, quite properly, arranged at the instigation of the respondents not the claimant.

 

(2) That the claimant has indeed objected to most of the hearing dates and sought to have them changed. However, where she failed to produce sufficient reasons the hearings have not been re-scheduled, eg the Deposit Order hearing, the Case Management Discussion on 20 May 2015 and today's hearing on 1 July 2015 all of which proceeded despite the objection of the claimant.

 

(3) This is not a case where the claimant has failed to engage in the proceedings or process. Whilst she has not attended a number of hearings, which I accept is frustrating both to the respondents and indeed the tribunal, she is not obliged to do so. She has, however, engaged at length in correspondence setting out her objections and opinions on the various steps taken by the tribunal and/or the respondents and how this claim has been progressed.

 

(4) The claimant is, of course, entitled to object to any order or directions made by the tribunal and indeed to challenge the assertions made by the respondents. That of itself is not a reason to justify a strike-out. The claimant has done that tenaciously in relation to each step of the process. Her objections have been set out in correspondence and she has advanced what she regards as sufficient reasons for those objections. Some of those objections have been accepted, such as in the re-scheduling of hearings and others have not been accepted by the tribunal.

 

(5) The abuse of e-mail alleged by the tribunal is in relation to a number of e-mails which was received in the few days before Christmas 2014 and I do not regard that as in any way an attempt at impugning or challenging the integrity or authority of the tribunal or the respondents.

 

19. It seems to me that the appropriate way to deal with this matter is to bring the claim on for hearing as soon as is reasonably practicable. Accordingly, a Case Management Discussion will be arranged at a date selected by the Office of the Tribunals to prepare this claim for hearing.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 1 July 2015, Belfast

 

 

Date decision recorded in register and issued to parties: