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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Gill v Belfast Health & Social Service [2008] NIFET 91_05FET (07 March 2008) URL: http://www.bailii.org/nie/cases/NIFET/2008/91_05FET.html Cite as: [2008] NIFET 91_5FET, [2008] NIFET 91_05FET |
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CASE REFS: 91/05 FET
661/05
CLAIMANT: Whyed Muhammed Gill
RESPONDENT: Belfast Health & Social Services Trust
Constitution of Tribunal:
Chairman (sitting alone): Mr P Kinney
The decision of the Tribunal is that unless the claimant complies with an Order for Additional Information made on 15 May 2007 within four weeks of the date this decision is registered and issued to the parties, his claims 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.
Appearances:
The claimant did not appear and was not represented.
The respondent was represented by Mr Devlin, Barrister-at-Law, instructed by MSC Daly, Solicitors.
The Issues
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 Tribunals Rules of Procedure 2005 and Rule 18(7)(e) of the Industrial Tribunals Rules of Procedure 2005 on the grounds that the claimant had failed to comply with Orders for Additional Information made on 15 May 2007.
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, Record of Proceedings and correspondence.
Background
The claimant presented an application to the Industrial Tribunal and Fair Employment Tribunal on 18 April 2005 claiming that he had been unlawfully discriminated against on the grounds of race, religious belief and political opinion by the respondent. The respondent presented a response on 27 May 2005 denying the claims.
A Case Management Discussion was held on 15 May 2007. The Record of Proceedings show the claimant participated by way of telephone conference. The Chairman at the Case Management Discussion ordered that each party will furnish any Notice for Additional Information or Discovery to other party by 31 October 2007. The other party will reply by 28 November 2007.
The Chairman also outlined a timetable for the provision of witness statements and listed the case for 23 to 25 June 2008.
In June 2007 the respondent furnished two Notices for Additional Information to the claimant, one in respect of Case Reference No: 661/05 (the claim for race discrimination) and the other for Case Reference No: 91/05 FET (the claim for religious belief and political opinion discrimination).
No replies have been provided by the claimant.
The Office of Tribunals wrote to the parties on 8 November 2007 to inform them that four Case Management Discussions had been arranged for Monday 17 December 2007 to consider the claimants current medical condition, the prognosis for the future and the re-listing of the four cases. As those matters may have had an effect on the listing dates with this case the parties were invited to attend the Case Management Discussion on 17 December 2007. In the event the claimant did not attend. At that Case Management Discussion the President considered a medical report she directed be provided by the claimant at an earlier Case Management Discussion. The President recorded:-
"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 report that was provided by the Senior House Officer, it would appear that although the Senior House Officer 'hopes' that when the claimant's medical position 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."
The respondent wrote to the Office of the Industrial Tribunal of Fair Employment Tribunal on 14 December 2007 to advise that they were going to seek a Strike-out Order against the claimant for non-compliance with an Order and also seeking costs in relation to the application. On 27 December 2007 the Office of Tribunals wrote to the parties confirming that a pre-hearing review would be arranged on the following issues.
(1) To determine the respondent's application to strike out the claim on the ground that the claimant had failed to comply with Orders for additional information, discovery and witness statements made on 15 May 2007.
(2) The respondent's application for costs.
At this hearing, Mr Devlin on behalf of the respondent has confined his application to Unless Orders in this case and has made his application for costs.
The Law
Rule 17(7)(e) of the Fair Employment Tribunal Rules and Procedure 2005 (as amended) provides.
(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 Tribunals Rules of Procedure 2005 is set out in the same terms.
Mr Devlin has confined his application today to Unless Orders from the Tribunal.
Rule 12(2) of the Fair Employment Tribunal Rules of Procedure 2005 provides:-
"(2) An order may also provide that unless the Order is complied with the claim, or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 18 or hold a pre-hearing review or hearing under rule 22".
Rule 13(2) of the Industrial Tribunals Rules of Procedure 2005 is again set in the same terms.
Tribunal's Conclusions
At a Case Management Discussion on 15 May 2007 the Fair Employment Tribunal ordered that the claimant provide answers to the respondent's Notices for Additional Information by 31 October 2007. The claimant has not furnished replies in accordance with the said Orders as of the date of this hearing. The claimant participated in the Case Management Discussion on 15 May 2007 and understood the requirements placed on him. There was no evidence to indicate that the fault for the non-compliance lay with anyone other than the claimant and he has not appeared today or given any explanations for his absence, nor has he given an explanation for why he has defaulted on the Tribunal's Orders. The Tribunal is satisfied that the respondent was entitled to obtain answers to the questions in the Notices for Additional Information to allow it to properly prepare for a fair hearing. The Tribunal orders that unless the claimant complies with the orders of 15 May 2007 (a further copy of which is attached to this decision along with copies of the Notices for Additional Information provided by the respondent) within four weeks of the date this decision is registered and issued to the parties, his claims will be automatically struck out on the date of 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 respondent shall notify the Tribunal if the claimant fails to comply with there Orders by the due date.
I have considered Mr Devlin's submissions in relations to costs. He points out in his submissions the claimant's failure to provide witness statements or replies on foot of orders is unreasonable. This case was initiated three years ago and has not been properly particularised. There has been no attempt at compliance with the orders. The respondent had to respond to the claimant's proceedings and also attend hearings in this matter.
The Tribunal's power to award costs is discretionary and costs orders are the exception rather than the rule.
I am not satisfied that this is an appropriate case for an award of costs. The initial order of the Tribunal made on 15 May 2007 relating to the provision of additional information was to be complied with by 28 November 2007.
The Tribunal is on notice that the claimant has suffered from ill-health from in and around September 2007 and he has provided some medical evidence to the Tribunal. Whilst it is far from clear from that medical evidence that the claimant was unable to respond to the Orders made, it is a factor to be borne in mind by the Tribunal. I have reached the conclusion that a costs order is not appropriate in this matter.
Chairman:
Date and place of hearing: 1 February 2008, Belfast
Date decision recorded in register and issued to parties:
CASE REFS: 91/05 FET
661/05
CLAIMANT: Whyed Muhammed Gill
RESPONDENT: North West Belfast HSS Trust
DATE OF HEARING: 15 May 2007
REPRESENTATIVES OF PARTIES:
CLAIMANT: In person.
RESPONDENT BY: Mr J Magee, Solicitor, of MSC Daly, Solicitors.
"Whether the respondent discriminated against the claimant on the grounds of race, religion belief or political opinion when it failed to appoint him to the post of Social Worker (basic grade)."
(i) Each party will furnish any Notice for Additional Information or Discovery to the other party by 31 October 2007.
The other party will reply to any such Notices by 28 November 2007.
(ii) Witness Statements
(a) The claimant and any witness he wishes to call must provide a witness statement to the respondent's representative by 29 February 2009.
(b) The respondent and any witness it wishes to call must provide a witness statement to the claimant by 15 April 2008.
(c) If the claimant or any of his witnesses wishes to respond to any evidence given in the respondent's witness statements, he must provide a supplementary witness statement to the respondent's representative by 29 April 2008.
(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.
(iii) Schedule of Loss
The claimant must provide to the respondent's 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 29 February 2008.
(iv) 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 20 June 2008. 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.
(v) Date of Hearing
23 – 25 June 2008.
Chairman:
Date: May 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 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.
Case No: FET 91/05
THE FAIR EMPLOYMENT TRIBUNAL
BETWEEN.
WHYED MUHAMMED GILL
Claimant
and
NORTH WEST BELFAST HEALTH & SOCIAL SERVICES TRUST
Respondent
TAKE NOTICE that you are hereby required no later than 28th• November 2007 to furnish to the solicitors on record for the Respondent Replies to the following requests for Further Information and Particulars in connection with these proceedings:
1. Was the Claimant employed as Project Manager by. Starting Point (NI) Limited in the period between September 2000 and 23rd April 2001?
5. Identify by name each and every comparator, if any, relied upon by the Claimant in these proceedings.
-40-
AND FURTHER TAKE NOTICE that should you fail to provide Replies to the aforesaid requests or any of them by 28th November 2007 at the latest, an application will be made on behalf of the Respondent to the Tnbunal for an Order, dismissing the proceedings issued herein, and for costs.
Dated this day of June 2007
Solicitors for the Respondent
—41—
Case No: 661/05
THE FAIR EMPLOYMENT TRIBUNAL
BETWEEN
WHYED MUHAMMED GILL
Claimant
and
NORTH WEST BELFAST HEALTH & SOCIAL SERVICES TRUST
Respondent
TAKE NOTICE that you are hereby required no later than 28th November 2007 to furnish to the solicitors on record for the Respondent Replies to the following requests for Further Information and Particulars in connection with these proceedings:
—:38—
AND FURTHER TAKE NOTICE that should you fail to provide Replies to the aforesaid requests or any of them by 28 November 2007 at the latest, an application will be made on behalf of the Respondent to the Tribunal for an Order, dismissing the proceedings issued herein, and for costs.
Dated this day of June 2007
Solicitors for the Respondent
-39-