Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  1630/14

 

 

CLAIMANT:                      Anne Teresa Madden

 

RESPONDENTS:              1.  Irish National Teachers Organisation

                                        2.  Gerry Murphy

                                        3.  Noel Ward

 

DECISION ON A PRE HEARING REVIEW

The claimant’s claim which contained a complaint of unlawful discrimination on the ground of disability by way of victimisation is struck out because she has failed to actively pursue it.

 

 

Constitution of Tribunal:

 

President (sitting alone): Miss E McBride CBE

 

 

 

 

Appearances:

 

The claimant did not attend and was not represented.

 

The respondents were represented by Mr B Harron of the Irish National Teachers Organisation.

 

 

 

The issues

 

1.       The issues to be determined at the Pre Hearing Review were:-

 

(i)       whether the claimant has failed to comply with the President’s Orders that she obtains and provides a medical report to the respondents and the tribunal detailing when, if ever, she is likely to be medically fit to attend and participate in a Case Management Discussion which will last up to one hour to prepare her case for hearing and,

 

          if so, whether her claim should be struck out for:-

 

                              (a)      failing to comply with the President’s Orders and/or

 

                              (b)      failing to actively pursue her case.

 

2.       On 19 August 2014 the claimant presented a claim to the industrial tribunal which contained a complaint of disability discrimination by way of victimisation against the respondents. 

 

3.       On 22 September 2014 the respondents presented a response resisting the claimant’s claim on the grounds that the claimant’s claim was invalid and without substance.

 

4.       By letter dated 7 October 2014 the claimant and respondents were notified that they were required to attend a Case Management Discussion on 28 October 2014 to prepare the case for hearing between January and March 2015. 

 

5.       By letter dated 8 October 2014 the respondent made an application for the claimant’s claim to be struck out on the ground that it was directly linked to the claimant’s previous claim which had been dismissed on 2 October 2014 following a Pre Hearing Review.  That tribunal’s decision was that, “the tribunal does not have jurisdiction under the Disability Discrimination Act 1995 (as amended) to hear the claimant’s claim.  She is not an employee of any of the respondents, and was elected to the post of Secretary of the South Derry Branch of INTO.  The claimant is not an office holder as defined in the legislation or holder of any other non-employment office in a Trade Union which would afford the tribunal statutory jurisdiction to consider her claim”.   The parties were notified, by correspondence dated 14 October 2014, that the respondents’ application would be considered at the Case Management Discussion on 28 October 2014.

 

6.       By letter dated 21 October 2014 the claimant applied for a postponement of the 28 October 2014 Case Management Discussion “due to current health issues” which were not identified.  The respondents did not object and the application was granted with a direction from the President, in accordance with the Andreou decision (referred to at paragraph 23 below), that before relisting the Case Management Discussion the claimant should provide a medical report to the tribunal and the respondents’ representative by 18 November 2014 detailing:-

 

                              (i)       the claimant’s current health issues and medical condition;

 

                              (ii)      the prognosis for the health issues and medical condition;

 

(iii)     when, if ever, the claimant is likely to be medically fit to attend a Case Management Discussion which would last up to one hour to prepare the case for hearing.

 

7.       On 14 November 2014 the claimant provided a medical report from her General Practitioner (GP) dated 12 November 2014.  The claimant’s GP gave details of the claimant’s medical condition going back to 2003 and her current health issues which came to light on 25 June 2014 and the prognosis.  However the claimant’s GP did not give his medical opinion of when, if ever, the claimant would be likely to be medically fit to attend a Case Management Discussion which would last up to one hour to prepare the case for hearing.  Nor did he state that in his opinion the claimant was medically unfit to attend the Case Management Discussion.  Instead he related the claimant’s opinion of her inability to attend the Case Management Discussion.

 

8.       The claimant was therefore notified, by letter dated 20 November 2014, that the President had directed that she should provide a further medical report to both the tribunal and the respondents’ representative by 3 December 2014 setting out her doctor’s medical opinion of when, if ever, she would be likely to be medically fit to attend a Case Management Discussion, which would last up to one hour, to prepare the case for hearing.

 

9.       The claimant failed to provide that further medical report.  Instead she informed the tribunal Secretary, by letter dated 28 November, among other things that she considered the “repeated requests for doctor’s evidence as disconcerting while I am undergoing scans, x-rays, examinations while meantime I await reports from consultants”.  She also informed the Secretary that, “your inclusion of the words “if ever” in both letters, I find most alarming and not conducive to any return to good health, because of undue stress caused”, and that as soon as she received any information of results of her health probe, she would forward her GP’s note of same.

 

10.     On 5 December 2014, a letter was sent to the claimant in the following terms:

 

“I acknowledge receipt of your correspondence dated 28 November 2014. 

 

I enclose a copy of the Andreou decision for your information, and refer you, in particular, to Paragraph 8 which was followed by the President when issuing the direction set out at Points 1-3 of the letter of 27 October 2014. 

 

                    While the President fully appreciates your position, the Court of Appeal has made it clear in the Riley case, at Paragraph 27 (copy enclosed), that “it is important to remember that the overriding objective in ordinary civil cases (and employment cases are in this respect ordinary civil cases) is to deal with cases justly and expeditiously without unreasonable expense.  Article 6 of the European Convention on Human Rights emphasises that every litigant is entitled to “a fair trial within a reasonable time”.  That is an entitlement of both parties to litigation.  It is also an entitlement of other litigants that they should not be compelled to wait for justice more than a reasonable time ...” and it is therefore important, in the interests of justice to both sides, for expert medical opinion to be provided on Points 1-3.  While expert medical opinion was provided on Points 1 and 2, it was not provided in relation to Point 3 and that is why a further direction was included in respect of Point 3 in the letter of 20 November 2014. 

 

Please indicate when that further medical opinion could be provided. 

 

Your correspondence of 28 November 2014 and this response to same have been sent to the respondents’ representative for information.” 

 

11.     The claimant did not respond to the tribunal’s request that she indicate when that further medical opinion could be provided.  The parties were therefore notified, by letter dated 13 January 2015 that as no reply had been received from the claimant, the President had relisted the Case Management Discussion for 3 February 2015. 

 

12.     By letter dated 22 January 2015 the claimant informed the tribunal that there had been no improvement to her state of health since her letter of 28 November 2014 and that she was still undergoing tests and examinations by Medical Consultants.  She repeated that as soon as she received any information of results of her health probe, she would forward her GP’s report of same and she applied for the 3 February 2015 Case Management Discussion to be postponed as she would be unable to travel and take part in a hearing.

 

13.     The respondents’ representative did not object to the claimant’s application for a postponement of the Case Management Discussion listed for 3 February 2015 which was also granted.  However, by letter dated 2 February 2015, the claimant was informed that in addition to postponing the Case Management Discussion, the President had ordered the claimant to obtain and provide a medical report to the respondents and the tribunal detailing when, if ever, she would be likely to be medically fit to attend and participate in a Case Management Discussion, which would last up to one hour, to prepare the case for hearing and that unless she complied with that Order by 3 March 2015, her claim could be struck out without further consideration of the proceedings, notice or holding of a Pre Hearing Review.  

 

14.     On 27 February 2015 the claimant provided a further medical from her GP, incorrectly dated 26 June 2015, in which her GP stated that there were a number of issues affecting the claimant’s general health and that she was awaiting further investigations and procedures and that, “It would be in her best interests for this Case management discussion to be postponed until she is more prepared and in a better mental and physical state to be involved fully.”  The claimant’s GP did not state when that was likely to be.  Nor did he state that in his medical opinion the claimant was not medically fit to attend and participate in the Case Management Discussion. 

 

15.     On 5 March 2015, the respondents’ representative applied for the claimant’s claim to be struck out for the following reasons:-

 

          “The Respondents note that the Claimant has not complied with the President of the Tribunals’ request, issued to her on 2^nd February 2015, that she indicate when, if ever, she is likely to be medically fit to attend and participate in a CMD, which will last up to one hour, to prepare the case for hearing.  The Respondents also note that, notwithstanding her medical condition, the Claimant has already attended a number of CMD and Pre-hearing Review meetings.”

 

16.     In light of the above circumstances, the President directed that a Pre Hearing Review should be arranged for 14 April 2015 to determine the following issues:-

 

“”Whether the claimant has failed to comply with the President’s Orders that she obtains and provides a medical report to the respondents and the tribunal detailing when, if ever, the claimant is likely to be medically fit to attend and participate in a Case Management Discussion which will last up to one hour to prepare her case for hearing and,

 

If so, whether the claimant’s claim should be struck out for:-

 

                    (a)      failing to comply with the President’s Orders and/or

 

                    (b)      failing to actively pursue her case.”

 

          and a Notice of Hearing with those issues attached was issued to the parties on 16 March 2015.  The Notice contained information in relation to the Pre Hearing Review including the following:

 

                    “You can either attend the hearing in person or submit written representations (which must be copied to the other side) to the Secretary of the Tribunals at the address shown overleaf not less than 7 days before the date of the hearing for consideration by the Tribunal at the hearing.” 

 

17.     By letter dated 2 April 2015 the claimant informed the tribunal, among other things, that she had become ill at the end of September/beginning of October 2014 and that she remained ill and more debilitated, that she had furnished the “requested medical statements and reports” and that she was unfit to attend or participate in the Pre Hearing Review listed for 14 April 2015.  Although the claimant had not made a specific application for a postponement of the Pre Hearing Review in this letter, it was nevertheless treated as an application for a postponement and in the President’s absence was referred to the Vice President who directed that it should remain listed.  The parties were notified accordingly by letter dated 9 April 2015.    

 

18.     The Pre Hearing Review proceeded on 14 April 2015.  The claimant did not attend or submit written representations for consideration by the tribunal.  Mr Harron appeared on behalf of all three respondents and made submissions to the tribunal which are summarised as follows.

 

18.1   It is clear that while the claimant has complied with points 1 and 2 of the President’s Orders, she has not complied with point 3.  That is because she has not obtained and provided a medical report which detailed a medical opinion as to when, if ever, in light of her medical condition and prognosis she was likely to be medically fit to attend a Case Management Discussion of up to one hour to progress her case to hearing.

 

18.2             Although doctors issue certificates day and daily stating whether a person is medically fit to attend work including meetings at work, the claimant’s GP did not state that in his opinion the claimant was unfit to attend the Case Management Discussions in either of his medical reports.  In his first medical report dated 12 February 2014 the claimant’s GP related that the claimant “feels that at this time she cannot cope with the pressure of Case Management Discussion.  It remains an import (sic) issue which she hopes to address in the future depending on her state of health”.  In his second report the claimant’s GP stated that “it would be in her best interests for this Case management discussion to be postponed until she is more prepared and in a better mental and physical state to be involved fully.”  Those statements are not the same as saying that in his medical opinion, the claimant was medically unfit to attend the Case Management Discussions. 

 

18.3             The claimant’s medical condition and health issues, which were outlined by her GP in his reports, did not prevent her attending a Case Management Discussion on 30 July 2014 or a Pre Hearing Review on 29 August 2014 in relation to her previous case.

 

18.4   The decision of another tribunal dismissing the claimant’s previous claim because it did not have jurisdiction to determine it and the tribunal’s reasons for reaching that decision were issued to the parties on 2 October 2014.  The claimant is aware that the respondents have applied for her present claim to be dismissed on the ground that the same jurisdictional point arises.  The claimant, who was a teacher for 40 years and who was on the executive of the union for many of those years is an intelligent person.  She is fully aware that, if the tribunal had no jurisdiction to determine her first claim, her current claim is unlikely to succeed either and is therefore deliberately trying to prevent this claim being dealt with by making repeated postponement applications in the knowledge that the longer the case goes on the more it will cost the union both financially and, potentially, reputationally.

 

18.5             The claimant would have been able to understand the President’s directions and orders in relation to the provision of medical evidence.  Notwithstanding that, the claimant has failed to comply with point 3 which is the key point of the directions and Orders, despite having been given a number of opportunities to do so and that failure together with the tone of a number of her letters to the tribunal in relation to point 3 of the Order, indicate that she is treating the tribunal with contempt.

 

18.6   It was made clear in the Riley case, which was provided to the claimant and copied to the respondents by the tribunal, that the right of every litigant to a fair trial within a reasonable time is the right of not only the claimant but the respondents and the respondents are very keen to have this case heard as quickly as possible because they believe that the longer the case goes on the more it will cost the first respondent financially and, potentially, reputationally. 

 

The statutory Provisions

 

19.     Regulation 3 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 provides:-

 

(1)      The overriding objective of these Regulations and the rules in Schedules 1, 2 and 3 is to enable tribunals and chairmen to deal with cases justly.

 

(2)      Dealing with a case justly includes, so far as practicable –

 

(a)      ensuring that the parties are on an equal footing;

 

(b)      dealing with the case in ways which are proportionate to the complexity or importance of the issues;

 

(c)      ensuring that it is dealt with expeditiously and fairly; and

 

(d)      saving expense.

 

(3)      A tribunal or chairman shall seek to give effect to the overriding objective when it or he –

 

(a)     exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2 and 3; or

 

(b)      interprets these Regulations or any rule in Schedules 1, 2 and 3.

 

(4)      The parties shall assist the tribunal or the chairman to further the overriding objective.

 

20.     Rule 17(7) of Schedule 1 of those Regulations provides:-

 

                              Subject to paragraph (6), a chairman or tribunal may make an order –

 

(d)      striking out a claim which has not been actively pursued;

 

(e)     striking out a claim or response (or part of one) for non-compliance with an order or practice direction.

 

Paragraph (6) provides:-

 

Before an order listed in paragraph (7) is made, notice must be given in accordance with rule 18.  The orders listed in paragraph (7) may be made at a pre-hearing review or a hearing under rule 22 if one of the parties has so requested.  If no such request has been made such orders may be made in the absence of the parties.

 

21.     Rule 18(1) provides:-

 

Before a chairman or a tribunal makes an order described in rule 17(7), except where the order is one described in rule 12(2), the Secretary shall send notice to the party against whom it is proposed that the order should be made. The notice shall inform him of the order to be considered and give him the opportunity to give reasons why the order should not be made. This paragraph shall not be taken to require the Secretary to send such notice to that party if the party has been given an opportunity to give reasons orally to the chairman or the tribunal as to why the order should not be made.

 

The Legal Principles

 

22.     In the Court of Appeal decision in Riley –v- The Crown Prosecution Service, [2013] EWCA Civ951, Longmore LJ stated at paragraphs 27 and 28 of his judgment:-

 

                    “27  It is important to remember that the overriding objective in ordinary civil cases (and employment cases are in this respect ordinary civil cases) is to deal with cases justly and expeditiously without unreasonable expense.  Article 6 of the ECHR emphasises that every litigant is entitled to “a fair trial within a reasonable time”.  That is an entitlement of both parties to litigation.  It is also an entitlement of other litigants that they should not be compelled to wait for justice more than a reasonable time. …”

 

                    “28 It would, in my judgment, be wrong to expect Tribunals to adjourn heavy cases, which are fixed for a substantial amount of court time many months before they are due to start, merely in the hope that a claimant’s medical condition will improve.  If doctors cannot give any realistic prognosis of sufficient improvement within a reasonable time and the case itself deals with matters that are already in the distant past, striking out must be an option open to a tribunal.”

 

23.     In Andreou –v- Lord Chancellor’s Department (2002) IRLR 728 the facts of the case are set out in the headnote as follows:

 

                    “Mrs Andreou was employed as a Crown Court usher.  She presented an application to an employment tribunal complaining of racial discrimination and the case was listed for a 10-day hearing commencing on 6 November 2000.

 

On 27 October, she sent a letter to the tribunal asking for a postponement of the Hearing on the ground that she would not be able to attend because of ill health.  She enclosed a certificate from her GP which stated that she was suffering from anxiety and stress and should refrain from working for 13 weeks.  The tribunal refused that application but said that it could be renewed at the hearing.

 

Mrs Andreou did not attend the hearing herself but was represented by a solicitor.  At the commencement of the hearing, he renewed the application for an adjournment on the grounds that Mrs Andreou was ill and could not attend.  The employers opposed the application and argued that if the adjournment was refused, the claim should be struck out by reason that Mrs Andreou was not present to prove her case. 

 

The tribunal concluded that it could not decide the matter on the basis of the medical evidence which had been supplied.  It accordingly adjourned the Hearing for one week until 13 November and ordered Mrs Andreou to provide a medical report by 4.00pm on 9 November giving answers to four specific questions relating to the nature of her illness and her fitness to attend and give evidence during a 10-day hearing.” 

 

The four specific questions were:-

 

“(i)     The nature of and prognosis for Mrs Andreou’s illness.

 

(ii)      Why Mrs Andreou was unfit to attend the hearing on 6 November 2000.

 

(iii)     Why, if this is the case, Mrs Andreou is unfit to attend the hearing on Monday 13 November 2000.

 

(iv)     When, if ever, Mrs Andreou will be fit to attend a hearing for a period of 10 days consecutively and give evidence for a substantial period of that 10-day period consecutively.”

 

                    The headnote continues:-

 

                    “The tribunal also made it clear that at the reconvened hearing, depending upon the content of that medical report, it would consider the employer’s application to strike out the originating application and that, therefore, Mrs Andreou should be prepared to show cause at that hearing why her complaint should not be struck out.

 

                    Shortly before the deadline, Mrs Andreou’s representative faxed to the tribunal a report from her GP which, for the most part, was in the same terms as an earlier report which was already before the tribunal.  The new report failed to answer the four specific questions posed by the tribunal.  It did state, however, that Mrs Andreou had recently consulted the doctor complaining of various symptoms, including suicidal tendencies, and that he had referred her to a consultant psychiatrist for a domiciliary visit and assessment.

 

                    On 10 November, a letter was sent to Mrs Andreou at the request of the tribunal Chairman informing her that the information supplied did not comply with the tribunal’s Order and that the Chairman was therefore considering whether to strike out her application.  She was warned that if she wished to give reasons why this should not be done, she should be prepared to do so at the hearing on 13 November. 

 

                    Mrs Andreou did not attend the hearing when it resumed on 13 November.  Her solicitor attended solely for the purpose of renewing the application for an adjournment.  The employment tribunal concluded that Mrs Andreou had failed to provide the additional medical evidence required by the Order and that it was not possible to infer from the available evidence that her illness was serious.  It therefore refused the application for an adjournment and ordered that Mrs Andreou’s claim should be struck out.”

 

The Court of Appeal approved the procedure followed by the tribunal, as set out in the above facts, and upheld the tribunal’s decision to strike out Mrs Andreou’s claim.   

 

          At paragraph 46 of the Court of Appeal decision, Peter Gibson LJ stated:-

 

                    “The tribunal in deciding whether to refuse an adjournment had to balance a number of matters.  They included not merely fairness to Mrs Andreou (of course, an extremely important matter made more so by the incorporation into out law of the European Convention of Human Rights, having regard to the terms of Article 6):  they had to include fairness to the respondent.  All accusations of racial discrimination are serious.  They are serious for the victim.  They are serious for those accused of those allegations, who must take very seriously what is alleged against them.  It is rightly considered that complaints such as this must be investigated, and disputes determined promptly; hence the short limitation period allowed. …”

 

24.     In Rolls Royce Plc –v- Riddle (2008) IRLR873 the Employment Appeal Tribunal held that:-

 

                    “Where an application to strike out is made under rule 18(7)(d) (the equivalent of Rule 17(7)(d) above), the Tribunal is required to begin by asking itself whether the claimant has failed to pursue his claim actively.  It will not usually be difficult to conclude that where a claimant has failed to appear at a full hearing of which he has been notified, that amounts to a failure to pursue his claim actively.  The Tribunal is then required to ask itself whether, taking account of the whole circumstances, it ought to exercise its discretion so as to strike out the claim.  The rule provides for a general discretion to strike out if the Tribunal is satisfied that there has been a failure to pursue a claim actively.

 

                    The rule is not drafted so as to fetter the discretion that is conferred by any particular considerations.  As with all exercises of discretion, it will be important to take account of the whole facts and circumstances including the fact that strike out is the most serious of sanctions.

 

                    Cases of failure to pursue a claim actively will fall into one of two categories:  (i) where there has been “intentional and contumelious” default by the claimant; and (ii) where there has been inordinate and inexcusable delay such as to give rise to a substantial risk that a fair trial would not be possible or there would be serious prejudice to the respondent.

 

                    These principles appear to have been identified because of two problems of which a failure to pursue a claim actively may be indicative.  The first is 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.  In that event the question arises as to whether, given such conduct, it is just to allow the claimant to continue to have access to the Tribunal for his claim.  That is a distinct and different matter from the second problem:  if a claimant has failed to pursue his claim actively to an inordinate and inexcusable extent, so as to give rise to a real risk of prejudice to the respondent if the claim were to carry on, then a question arises as to whether or not there can still be a fair trial, and, if there is doubt about that, whether the claim should then be prevented from going any further. …”

 

Decision

 

25.     Having considered the claim and response forms in this case and the claimant’s previous case, the decision of the tribunal on jurisdiction in the previous case, the documents and correspondence in this case, some of which has been summarised above, Mr Harron’s submissions at the Pre Hearing Review, which have been summarised above, the relevant statutory provisions and the principles of law, as set out above, the President concluded from:

 

(1)     the claimant’s applications to postopne the Case Management Discussions which were arranged to progress her case to hearing within a reasonable period, which is an entitlement of all parties to litigation; and

 

(2)     the claimant’s failure to provide a medical report detailing when, if ever, she would be medically fit to attend and participate in a Case Management Discussion, which would last up to one hour, to prepare her case for Hearing which was necessary to enable the President to consider the relisting of the Case Management Discussion, despite having been given a direction, an explanation as to why the direction had been issued, a further direction, an Order and an Unless Order;

 

          that the claimant has:

 

(i)       failed to comply with the President’s Order that she provides a medical report to the respondents and the tribunal detailing when, if ever, she would be likely to be medically fit to attend a Case Management Discussion which would last up to one hour to prepare her case for hearing; and

 

(ii)      failed to take reasonable steps to actively pursue her claim. 

 

26.     In addition, the fact that:

 

(1)      the medical reports which were provided by the claimant not only failed to include a medical opinion as to when, if ever, the claimant was likely to be medically fit to attend a Case Management Discussion which would last up to one hour to progress her case to Hearing but did not state that in her GP’s medical opinion the claimant was medically unfit to attend either Case Management Discussion;

 

(2)      the claimant had been able to attend and participate in a Pre Hearing Review in relation to her previous claim on 29 August 2014 although, as indicated by her GP in his medical report of 12 November 2014, her current medical issues came to light on 25 June 2014;

 

(3)      the claimant’s letter of 2 April 2015 to the tribunal in which she stated that she became ill at the end of September/October 2014 was inconsistent with her GP’s report of 12 November 2014 and suggested that she was trying to get round the respondents’ representative’s reference to the fact that she had been able to attend and participate in a Pre Hearing Review on 29 August 2015 in relation to her previous claim, notwithstanding those medical issues;

 

(4)      the claimant’s previous claim had been dismissed for lack of jurisdiction on 2 October 2014 following a Pre Hearing Review on 29 August 2014 and the respondents had made an application for this claim to be struck out as well on the ground that the same jurisdictional point arose;

 

(5)      the parties had been notified that the respondents’ application would be considered at the Case Management Discussion;

 

          led the President to conclude that the claimant’s applications to postpone the Case Management Discussions and failure to comply with point 3 of the Orders amounted to a deliberate attempt by her to put off the hearing of her claim indefinitely, thereby keeping it hanging over the respondents’ heads, because she was aware that her claim may not succeed in light of the previous tribunal’s decision on the jurisdictional point.  While the President was mindful that striking out a claim is the most serious of sanctions, she concluded that the manner in which the claimant has behaved, as set out above, shows a disrespect and/or contempt for the tribunal and

 

its procedures and that it would not therefore be just to allow the claimant to continue to have access to the tribunal for her claim and it is therefore struck out on the ground that she has failed to actively pursue it.

 

 

 

 

 

 

______________________________________

E McBride CBE

President

 

 

Date and place of hearing:  14 April 2015, Belfast            

 

 

Date decision recorded in register and issued to parties: