Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 4/16

CLAIMANT: Joseph Olayinka

RESPONDENT: Works Services Ltd

DECISION ON AN APPLICATION FOR A

PREPARATION TIME ORDER

The decision of the tribunal is that it would not be appropriate in this case to make a preparation time order.

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge McCaffrey

REASONS AND DECISION

1. This matter related to an application for preparation time made by the respondent in this case following the claim having been struck out for the claimant's failure actively to pursue his claim. At the request of the respondent, it was dealt with without a formal hearing. The claim was lodged early in 2016. At a Case Management Discussion on 23 February 2016, it transpired that the claimant's claims of unfair dismissal and redundancy pay were not well-founded. The claimant asserted that his main claim was in relation to the fact that he said he had been owed money by the respondent but had not received it until January. He confirmed that he was not owed any other money at this stage. At the Case Management Discussion I had told the claimant that he should seek advice in relation to these claims and that if he pursued the claim and was unsuccessful, there was a possibility of having an award of costs made against him for preparation time on the part of the respondent.

2. The case was listed for hearing on 14 April 2016. The respondent subsequently applied for a further Case Management Discussion because the claimant had failed to provide replies to the respondent's requests for Additional Information in accordance with the tribunal's directions. A Case Management Discussion was arranged for 4 April 2016 which the claimant did not attend. Given the proximity of the hearing, an Unless Order was then issued to the claimant for failure to actively pursue his claim and breach of the tribunal's orders. He did not respond to give reasons why the claim should not be struck out and the case was subsequently struck out.

3. The respondent subsequently made a written application for a Preparation Time Order. That correspondence was sent to the claimant to allow him an opportunity to make representations, which he did not do within the time specified or at all.

4. The respondent's representative Miss Scott advised in an email to the Office of the Industrial Tribunals that the respondent had employed the services of a
non-practising solicitor for a day and she had spent eight hours with him constructing an email to the claimant, setting out a number of questions to which they requested replies. There were 10 such questions and the email to the claimant also set out the respondent's view in relation to the claimant's employment status. Miss Scott's claim was for £20.00 per hour for her own time (£160.00) plus £80.00 for the services of the advisor.

5. Under Rules 42-47 of the Industrial Tribunals (Constitution and Rules of Procedures) Regulations 2005, preparation time orders can be made where the receiving party was not legally represented. The potential paying party must be given an opportunity to give reasons why the order should not be made. The circumstances in which a preparation time order can be made are similar to those set out for the award of costs order. The first question is whether the claim is misconceived or the party concerned has acted frivolously, vexatiously or otherwise unreasonably in the conduct of the claim. The second issue is whether it is an appropriate case for the tribunal to exercise its discretion to make an order for preparation time. I am conscious, too, the awards of legal costs or preparation time costs are the exception rather than the rule and that costs do not automatically follow the event in Industrial Tribunals (see McPherson v BNP Parisbas [2004] EWCA Civ 569 at paragraph 2 and Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255 at paragraph 7).

6. In this case, I consider that the claimant's case was misconceived and that this was explained to him at the Case Management Discussion he attended in February 2016. He was clearly told first, that as he had only worked for the respondent for a matter of four weeks, he could not bring claims for unfair dismissal or a redundancy payment and why. Secondly, he was told that the Industrial Tribunals could not make an award to him in relation to non-payment of wages unless it was satisfied that there was an amount outstanding for unpaid wages, and this was not the case according to him.

7. I am also satisfied that the behaviour of the claimant in failing to reply to the requests for Additional Information from the respondent and in failing to contact the tribunal in relation to the Case Management Discussion arranged for April 2016 until after the event was unreasonable on his part.

8. The issue which I have to consider is whether it is appropriate in all circumstances of the case to make an award for a preparation time order. In my view in this case it is not appropriate to make such an order. The respondent has claimed for eight hours' preparation time which I consider to be excessive for the work done, but in any event I do not consider it appropriate to make an order in this case. The claimant was engaged on manual work for the respondent. He does not appear to be a native of Northern Ireland and his command of English seemed to me to be limited. In all these circumstances, and even though it is evident to me that his claim was misconceived and that this was pointed out to him at the Case Management Discussion, I do not consider that this is an appropriate case in which to exercise my discretion to make a preparation time order.

Employment Judge:

Date decision recorded in register and issued to parties: