Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 1739/17

CLAIMANT: Thomas Cuthbert

RESPONDENT: Tesco Stores Ltd

DECISION

The decision of the tribunal is that the claimant's claim to the tribunal is struck-out, pursuant to Rule 13(2) of the Rules of Procedure, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, on the grounds that the claimant has failed to comply with the 'Unless Order' of the tribunal, dated 24 October 2017, as amended, requiring him to provide replies to the respondent's Notices for Additional Information and/or Discovery, dated 17 July 2017, by 17 November 2017.

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Drennan QC

Appearances:

The claimant is a litigant-in-person.

The respondent was represented by Ms A Collins, Solicitor, of Jones Cassidy Brett, Solicitors.

Reasons

1. At a Case Management Discussion on 20 October 2017, as set out in the Record of Proceedings, dated 24 October 2017, I made an 'Unless Order' against the claimant, pursuant to Rule 13(2) of the Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 ('the Rules of Procedure'), requiring the claimant by 3 November 2017, to provide replies to the respondent's Notices for Additional Information and Discovery, dated 17 July 2017, and to provide all relevant evidence upon which he intended to rely by 3 November 2017; and informing him that, if he did not do so, the tribunal might make a decision striking-out the claimant's claim, without further consideration of the proceedings or the need to give notice under Rule 19 or to hold a pre-hearing review or a hearing under Rule 26 of the Rules of Procedure.

It has to be noted that this 'Unless Order' was made in circumstances where the claimant had failed to comply with previous Orders of the Tribunal to provide replies to the said Notices and the said medical evidence, as set out in a Record of Proceedings, dated 4 July 2017, of a Case Management Discussion on 3 July 2017 and a Record of Proceedings, dated 8 September 2017, of a Case Management Discussion on 7 September 2017.

2. Following notification by the respondent's representative, in an e-mail, dated 6 November 2017, that the claimant had not provided replies to the respondent's Notices for Additional Information and/or Discovery and all relevant medical evidence upon which he intended to rely by 3 November 2017, I arranged a further Case Management Discussion, which took place on 10 November 2017, as set out in the Record of Proceedings, dated 14 November 2017.

3. As set out in the said Record of Proceedings, dated 14 November 2017, I satisfied myself that the claimant was aware of the full terms of the 'Unless Order' (namely the replies to the Notices and the medical evidence); and also the consequences for his failure to comply with the terms of the said 'Unless Order'.

4. Following discussion, and despite the respondent's representative seeking an immediate decision to strike-out the claimant's claim, for the reasons, as set out in the said Record of Proceedings, dated 14 November 2017, and, in particular, Paragraph 2, I decided the claimant, who is a litigant-in-person, was seeking 'some relief from sanction' and remained anxious that his claim would still be heard by the tribunal. In the circumstances, in my discretion, I therefore decided to extend the time for the claimant to fully comply with the said 'Unless Order' until 12.00 pm on 17 November 2017. The claimant agreed that he would comply with the said 'Unless Order', as amended by the said date and time. I emphasised to the claimant, if he continued to fail to fully comply with the said 'Unless Order', then his claim to the tribunal was likely to be struck-out, as compliance was essential for a fair trial of this matter and, in particular, to enable the respondent to properly defend the claimant's claim to the tribunal.

5. On 17 November 2017, the claimant delivered a handwritten note to the tribunal asking for an extension of time to 5.00 pm on 17 November 2017 to enable him to deliver the appropriate medical information requested to the offices of the respondent's solicitor. I extended the time, as requested, to 5.00 pm on 17 November 2017, subject to any objection by the respondent's representative. No such objection was received. He made no reference, in the said note, for an extension of time in relation to replying to the said Notices.

6. By an e-mail, dated 20 November 2017, the respondent's representative informed the tribunal that the claimant, pursuant to the said 'Unless Order', had provided to her the medical evidence upon which he intended to rely; but he had not complied with the said 'Unless Order' insofar as it also required him, as set out above, to reply to the said Notices for Additional Information and Discovery, dated 17 July 2017, by the extended time for compliance with the 'Unless Order', namely 5.00 pm on 17 November 2017. No further application for relief from sanction has been made by the claimant since the said extension of time was granted by me, as set out above.

7. I acknowledge that the claimant has complied with that part of the 'Unless Order', which related to the provision of relevant medical evidence upon which he intended to rely. However, at the hearing on 10 November 2017, when granting him the said extension of time, I emphasised to the claimant the requirement to not only provide the said medical evidence but also replies to the said Notices for Additional Information and Discovery, dated 17 July 2017, and which remained outstanding and required to be replied to by him. The claimant was made fully aware of the consequences of failing to comply with the said 'Unless Order'. By letter dated 15 November 2017, the claimant was sent a copy of the Record of Proceedings of the Case Management Discussion that had been held on 10 November 2017. The said 'Unless Order', pursuant to Rule 13(2) of the Rules of Procedure, allows the tribunal, in the exercise of its discretion to strike-out the claimant's claim without further consideration of the proceedings or the need to give notice to the claimant or hold any further hearing.

8. Under Rule 13(2) of the Rules of Procedure, failure to comply with the said 'Unless Order' does not, unlike in Great Britain, result in an 'automatic' strike-out of the claimant's claim. I continue therefore to have a discretion whether to make a decision to strike-out a claimant's claim for failure to comply with an 'Unless Order'. I do not underestimate that to strike-out a claim is a draconian remedy. However, for the reasons set out above, I already have exercised my discretion to extend time for compliance with the said 'Unless Order', after explaining in detail to the claimant the necessity to fully comply with the said 'Unless Order' and not just that part that related to the provision of medical evidence. There has to be a limit to the number of chances that can be given to a party who fails to comply with such an 'Unless Order'. I have taken into account, at all material times, that the claimant is a litigant-in-person. However, the fact that he is a litigant-in-person cannot prevent a decision to strike-out a claim, where it is appropriate and necessary to do so and, in particular, where time has already been extended, with his agreement, to enable him to fully comply with the said 'Unless Order'. I continue to be satisfied that replies to the said Notices are required to be made by the claimant to enable the respondent's representative to properly prepare and defend the claimant's claim, which is a claim for unfair dismissal but also a claim for direct disability discrimination and/or failure to comply with the duty to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995, as amended, and replies to said Notices are an essential part of the respondent's preparation of its defence to the claim so the respondent knows the case it has to meet; but also to enable the issues to be identified for determination by the tribunal at any substantive hearing. By reason of the continuing failure of the claimant to reply to the said Notices, I am not satisfied that a fair trial is possible. Having regard to the terms of the overriding objective, the interests of justice and the requirement for litigation to be conducted efficiently and, after taking into account the opportunities, as referred to above, that have already been given to the claimant to fully comply with the said 'Unless Order', I have decided it is appropriate, in the circumstances, to strike-out the claimant's claim to the tribunal.

Employment Judge

Date decision recorded in register and issued to parties: