100_07FET Gill v Starting Point [2008] NIFET 100_07FET (18 March 2008)

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Cite as: [2008] NIFET 100_07FET, [2008] NIFET 100_7FET

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    FAIR EMPLOYMENT TRIBUNAL

    CASE REFS: 100/07 FET

    2285/01

    CLAIMANT: Whyed Muhammed Gill

    RESPONDENT: 1. Starting Point

    2. Gerry Reynolds
    3. Margaret Brady
    4. Nicola Powderly
    5. Jim McCabe

    DECISION ON A PRE HEARING REVIEW

    The decision of the Tribunal is that unless the Claimant complies with Orders for Additional Information and Discovery made on 15 May 2007 within 4 weeks of the date this decision is registered and issued to the parties, his claim shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice to the claimant or hold a pre-hearing review or any other hearing.

    Constitution of Tribunal:

    Chairman (sitting alone): Mr P Kinney

    Appearances:

    The claimant did not appear and was not represented.

    The first second and third-named respondents were represented by Miss Richardson, Solicitor, of J Blair Employment Law Solicitor.

    The fourth and fifth-named respondents were represented by Miss Jones, Solicitor, of Alana Jones, Solicitors

    Issues

  1. This hearing was arranged to consider the respondent's application to strike out the claimant's claims under Rule 17(7)(e) of the Fair Employment Tribunal Rules of Procedure 2005 and Rule 18(7)(e) of the Industrial Tribunal Rules of Procedure 2005 on the grounds the claimant had failed to comply with Orders for Additional Information and Discovery made on 15 May 2007.

  2. The claimant did not appear nor was he represented at this hearing. I am satisfied that the claimant was properly notified of today's hearing. I am also satisfied that a check has been made this morning immediately prior to the commencement of this hearing to see if the claimant has attended or has left any telephone message. I am satisfied that he is neither here nor has he contacted the office. In the circumstances I therefore determine that I will proceed to hear the respondent's application in the absence of the claimant and that I will take into account any information available to me in relation to the claimant's position including the claim form, the response form, Records of Proceedings of Case Management Discussions and correspondence.

    3. Background

  3. The claimant made an application to the Industrial Tribunals on 6 June 2001 alleging unlawful discrimination on the grounds of religious belief, political opinion, race and sex. The respondents presented responses on 4 July 2001 denying the claims.

  4. A Case Management Discussion was held on 15 May 2007 at which the Chairman made an Order that the claimant comply with Orders for Additional Information and Discovery in favour of the first second and third-named respondents by 29 June 2007 and a further Order that the claimant comply with Orders for Additional Information and Discovery in favour of the fourth and fifth named respondents by 29 June 2007. The claimant attended that Case Management Discussion by way of telephone conference.

  5. On 11 June 2007 the representatives of the first second and third-named respondents received replies to the Order for Discovery but they contended that the replies were incomplete. They received no replies to the Order for Additional Information.

  6. The fourth and fifth-named respondent received no information whatsoever from the claimant on foot of the Orders against him.

  7. The fourth and fifth-named respondents applied to the Tribunal on 4 July 2007 making an application to strike-out the claimant's claim for non-compliance with the tribunal Orders for Additional Information and Discovery. The fourth and fifth-named respondents had received no information from the claimant.

  8. On 14 August 2007 the representatives of the first second and third-named respondents wrote to the claimant pointing out the deficiencies in the response to the Order of Discovery and asked for response for the Notice for Additional Information.

  9. A pre-hearing review was arranged for 17 September 2007 to consider whether the claimant's claims against the respondents should be struck out for failure to comply with the Orders made on 15 May 2007 amongst other issues to be determined at that hearing.

  10. On 10 August 2007 the claimant sent an e-mail to the tribunal in which he guaranteed that he would hand deliver responses to the fourth and fifth respondents on the 7 September 2007 and indicated at the end of that e-mail:-

    11. "indeed I would be happy for the court to strike out my claim against the fourth and fifth respondents if I fail to meet my own undertaking by 7 September without the need for any further hearing".
  11. The tribunal then received correspondence from the claimant's wife indicating that the claimant was too unwell to attend a pre-hearing review in another case. The pre-hearing review was postponed to allow the claimant to provide medical evidence to the tribunal.

  12. A further Case Management Discussion was held on 22 October 2007. The Record of Proceedings reveals that the claimant did not appear and was not represented. A redacted consultant psychiatrist medical report had been furnished by the claimant. This indicated that the claimant was to be reviewed by the consultant psychiatrist around 16 November 2007. The Chairman of the Case Management Discussion ordered the claimant to produce a further medical report detailing the following matters.

    13. (1) The prognosis for the claimant's medical condition;
    (2) When, if ever, the claimant will be medically fit to attend a pre-hearing review in the above case which is likely to last approximately one hour.

    (3) Depending on the outcome of the pre-hearing review when, if ever, the claimant will be fit to attend a substantive Hearing which is likely to last for a period of 5-15 days consecutively and to give evidence, be cross-examined, and, if unrepresented, to cross-examine the respondents' witnesses, given that:-
    (a) The claimant has ten other cases, two of which also require pre-hearing reviews to be listed and, depending on the outcome of those pre-hearing reviews, substantive hearings which could each last for a week or longer;
    (b) The remaining eight cases are due to be heard at regular intervals over the next 14 months."

  13. A further Case Management Discussion was held on 17 December 2007. Again the claimant did not appear and was not represented. However, a further medical report was e-mailed on the morning of the hearing and was considered at the Case Management Discussion. The report was not provided by the consultant psychiatrist but by a senior house officer and the specific matters set out in the previous Case Management Discussion to be dealt with in the medical report had not been fully addressed.

    14. At paragraph 6 of that Record of Proceedings the President sets out:-

    "6. I am concerned that my Order of 7 November 2007 in which I set out specific matters which should be dealt with in the medical report having regard to the cases of Teinaz –v- London Borough of Wandsworth and Andreou –v- Lord Chancellor's Department, was not fully addressed. However, on the basis of the medical that was provided by the senior house officer, it would appear that although the senior house officer "hopes" that when the claimant's medical condition improves he would be able to deal with the eleven sets of proceedings which he has brought, it is the expert opinion of the senior house officer and presumably the consultant psychiatrist that the claimant's medical condition may never fully resolve until these proceedings are dealt with. On that basis and in view of the fact that the case is now six years old. I conclude that balancing the interests of justice between the parties the pre-hearing review should be listed for Thursday 31 January 2008 at 10.00 am.

    The Law

  14. Rule 17 (7)(e) of the Fair Employment Tribunal Rules and Procedure 2005 (as amended) provides:-

    15. (7) Subject to paragraph (6), a Chairman or Tribunal may make an Order:-
    (e) Striking-out a claim or response (or part of one) for non-compliance with a decision or order or practice direction.
    Rule 18(7)(e) of the Industrial Tribunal Rules of Procedure 2005 is set out in the same terms.
  15. In deciding to strike out a claim for non-compliance with an Order the Tribunal must consider the overriding objective contained in Regulation 3 of the 2005 Rules:-

    16. "3(1) the overriding objective of these Regulations and the rules in Schedules 1, 2 and 3 is to enable Tribunals and Chairman 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."

  16. The EAT considered the relevant factors to consider in exercising discretion to strike-out in the case of Weir Valves and Controls (UK) Ltd –v- Armitage [2004] ICR page 371. At paragraph 17 page 375 Judge Richardson set out the following:-

    17. "But it does not follow that a striking-out Order or other sanction should always be the result of disobedience to an Order. The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused, and, still, whether a fair hearing is still possible. It should consider whether striking-out or some lesser remedy would be an appropriate response to the disobedience."

  17. In the case of Blockbuster Entertainment Ltd –v- James [2006] IRLS 630 the Court of Appeal also considered the power of the Tribunal to strike-out a claim. Lord Justice Sedley in his decision said this at paragraph 5:-

    18. "This power, as the employment tribunal reminded itself, is a draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Blackledge [2002] 2 BCLC 167 and of the EAT in De Keyser v Wilson [2001] IRLR 324, Bolch v Chipman [2004] IRLR 140 and Weir Valves v Armitage [2004] ICR 371, but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal".

  18. He then said at paragraph 21:-

    19. "It is not only by reason of the convention right to a fair hearing vouchsafed by Article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196, especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact – if it is a fact – that the tribunal is ready to try the claims; or – as the case may be – that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences".

    Submissions

  19. Miss Richardson in her submissions pointed out that it was now almost seven years since the matters the claimant complained of had occurred. However the respondent still did not know the details of the claim they were asked to meet. There had been no communication apart from a partial reply to the Order for Discovery. Miss Richardson suggested that the only sensible course open to the tribunal was for the claim to be struck out. The claimant had not provided the information required by the Orders. He ignored the Orders and ignored follow up correspondence. He has had every opportunity to rectify the failure to comply with the Orders and has chosen not to do so. The respondents are placed in a difficult position. They cannot understand the full nature of the claimant's case. They have no response to Orders and have not received witness statements and do not know what case they have to meet. The first respondent is a small charitable organisation with only nine employees and very limited funding. It is difficult in the circumstances to continue to attend hearings and try and deal with this matter when the claimant is refusing to comply with the Orders of the Tribunal.

  20. Miss Jones on behalf of the fourth and fifth named respondents accepted that many of the points in her submission were covered already by Miss Richardson. She added however that one distinction was that the fourth and fifth respondents had received no compliance whatsoever with the Orders made in relation to them. The claimant had provided no information at all. The record of proceedings of the Case Management Discussion on 15 May 2007 show the warning of the consequences of failure to comply with these Orders. The forth and fifth-named respondents' application for a strike out was made on 4 July 2007 and since then the claimant has effectively been on notice of a strike out application. He has guaranteed responses to the Tribunal by 7 September and indicated that he was happy for the Tribunal to strike out the claims if he failed to meet his own undertaking. The claimant did fail to meet his own undertaking. There have been subsequent Case Management Discussions which the claimant has not attended and he has failed to provide any explanation for his failure to comply with this Order. Further delay in this matter is not in the interests of justice. The respondents have attended the Case Management Discussions whilst trying to run their own business. It is expensive and time wasting for them and is disruptive to the Tribunal and other claimants who are waiting for their cases to be heard. The case is now so old that if a fair trial is not possible as the respondents are not able to understand the basis of the claimants claims. Miss Jones referred the Tribunal to the case of Arrow Nominees Inc & Anr –v- Blackledge and others [2000] EWCA Civ 200 at paragraph 55 Lord Justice Chadwick says:-

    21. "a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demand of other litigants upon the finite resources of the court".

    Tribunal's Conclusions

  21. I have considered carefully the 2005 Rules and the guidance on their operation provided by the cases mentioned. I have also taken into account the medical evidence relating to the claimants illness and to the helpful submissions of Ms Richardson and Ms Jones.

  22. The Tribunal is conscious that the power to strike out is a draconian power and not one to be used as a punishment. The Tribunal must have regard to the factors identified in Weir Valve and to the terms of the over riding objective. The Tribunal must also consider the comments of Lord Justice Sedley in Blockbuster Entertainment -v- James, that is that the response of the Tribunal must be proportionate.

  23. It is clear that the claimant has failed to comply with the terms of the Orders explained to him and made on 15 May 2007. It is also clear that the claimant has had a number of opportunities to comply. There is no evidence before the Tribunal to indicate that the fault lies anywhere other than with the claimant.

  24. I have considered the documents provided to the first second and third named respondents on 11 July 2007. I consider that they do not directly address the questions asked by the respondent, although the content of the documents have some relevance. I find that the documents do not comply with either the Order for Discovery or the Order for Additional Information. Nevertheless an attempt was made at meeting the requirements of the respondent. It is possible that this process could have continued had the claimant not suffered ill health from September 2007 culminating in the condition evidenced by the medical reports referred to in the Case Management discussions of 22 October 2007 and 17 December 2007.

  25. I have concluded that I should not make a strike out Order in this case. I have taken into account the fact that an Unless Order has never been made in this case and the medical evidence albeit incomplete provided on the claimants behalf. I consider that a fair hearing is still possible but only if the claimant fully complies with the Orders made by the Tribunal and appraises the respondent of the detail and particulars of his claim in the immediate future. I have determined that the correct course is for the Tribunal to make an unless Order in the following terms:-

    26. Unless the claimant complies with the Orders made by the Tribunal on the 15 May 2007 (further copies of which are attached to this decision) within four weeks of the date this decision is recorded as registered and issued to the parties, his claims will be struck out on the date of such non compliance without further consideration of the proceedings or the need to give the claimant any further notice or to hold a Pre Hearing Review or any other Hearing. The respondents should notify the Tribunal if there is no compliance with this Order by the due date.

    Chairman:

    Date and place of hearing: 31 January 2008, Belfast

    Date decision recorded in register and issued to parties:

    THE INDUSTRIAL TRIBUNALS
    CASE MANAGEMENT DISCUSSION
    (DISCRIMINATION)
    (BY TELEPHONE CONFERENCE FACILITY)

    CASE REF: 02285/01

    CLAIMANT: Whyed Muhammed Gill

    RESPONDENTS: 1. Starting Point

    2. Gerry Reynolds
    3. Margaret Brady
    4. Nicola Powderly
    5. Jim McCabe

    DATE OF HEARING: 15 May 2007

    REPRESENTATIVES OF PARTIES:

    CLAIMANT: In person.

    FIRST, SECOND AND THIRD-NAMED RESPONDENTS BY: Ms R Wilson, Solicitor, of J Blair, Employment Law Solicitor.

    FOURTH AND FIFTH NAMED RESPONDENTS BY: Ms N Powderly, of Evolution Human Resource and Management Consultancy.

    Case Management Discussion
    Record of Proceedings

  26. It was indicated to the tribunal that there were no issues which required the holding of a separate pre-hearing review.

  27. In his application presented to an industrial tribunal on 6 June 2001, the claimant, at Paragraph 15, also alleged that he had been unlawfully discriminated against on the grounds of religious belief or political opinion. Consequently, these claims will now also be registered as a claim before the Fair Employment Tribunal.

  28. Issues

    29. The issues for the tribunal are as follows:-
    (i) Did the claimant suffer unlawful discrimination on the grounds of sex, race, religious belief and political opinion?

    The claimant alleges that he was subjected to a campaign of harassment on these grounds, and that the disciplinary proceedings brought against him were also influenced by these factors.
    The claim against the fourth and fifth-named respondents is that they aided the other respondents.
    (i) The claimant further alleges that he was unfairly dismissed by the first-named respondent, Starting Point.
    That respondent denies that the claimant had the necessary continuity of service.

  29. Orders

    30. In accordance with Rule 10(1) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, I make the following orders, by consent:-

    (i)(a) That the claimant complies with Orders for Additional Information and Discovery in favour of the first, second and third-named respondents by 29 June 2007.
    (b) That the claimant complies with Orders for Additional Information and Discovery in favour of the fourth and fifth-named respondents by 29 June 2007.

    Copies of the said Orders and Schedules are attached.

    (c) The respondents will make available to the claimant all documents on which they intend to rely at the hearing.
    (d) It appears that the claimant may already have sent Notices requesting Additional Information (Further Particulars) and Discovery to the fourth and fifth-named respondents. He undertook to send further copies of these Notices to Ms Powderly by 29 June 2007, so that they can be re-considered. Ms Powderly will respond by 20 August 2007.

    (ii) Witness Statements

    (a) The claimant and any witness he wishes to call must provide a witness statement to the respondents' representative by 31 August 2007.
    (b) The respondents and any witness they wish to call must provide a witness statement to the claimant by 12 October 2007.
    (c) If the claimant or any of his witnesses wishes to respond to any evidence given in the respondents' witness statements, he must provide a supplementary witness statement to the respondents' representative by 26 October 2007.
    (d) A witness statement must be a complete statement of the evidence that the witness wishes to give to the tribunal. A witness will not be permitted to add to his statement without the consent of the tribunal. Consent will only be given where there is good reason for doing so.
    (e) Each witness statement will be read aloud to the tribunal, unless the tribunal considers that it is inappropriate to do so.
    (f) The witness statements will not normally be read by the tribunal prior to the commencement of the hearing, unless the parties are otherwise informed.

    (ii) Schedule of Loss

    The claimant must provide to the respondents' representative a schedule of all financial loss claimed by the claimant, setting out in particular the nature and amount of any such loss claimed and how that sum is made up, by 31 August 2007.

    (iii) Bundles

    An agreed bundle, paginated and with a proper index, of all relevant documents including the witness statements, with numbered paragraphs, must be lodged in the Office of the Tribunals by 16 November 2007. Any documents referred to in the witness statements must be identified by page number in the bundle. Three further sets of the bundle must be brought to the Office of the Tribunals not later than 9.30 am on the first day of the hearing.

    (iv) Date of Hearing

    19 – 23 November 2007;

    26 – 30 November 2007; and

    3 – 7 December 2007.

    Chairman:

    Date: June 2007

    Notice

    If any party fails and/or is unable to comply with any of the above orders, any application arising out of such failure or inability to comply must be made promptly to the tribunal and in accordance with the Rules of Procedure.

    Failure to comply with any of these orders may result in an Order for Costs under Rule 13(1) of the Rules of Procedure or for an Order that the whole or part of the claim, or as the case may be, the response, may be struck out and, where appropriate, the respondent to be debarred from responding to the claim altogether.

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