FAIR EMPLOYMENT TRIBUNAL

CASE REF:  76/12FET
1188/12

CLAIMANT:			Thomas McGeown

RESPONDENT:		HM Revenue & Customs

DECISION ON A PRE HEARING REVIEW
The claimant’s claim which contained complaints of unlawful discrimination on the ground of religious belief and unfair dismissal is struck out because he has failed to actively pursue it.

Constitution of Tribunal:
President (sitting alone):	  Miss E McBride

Appearances:

The claimant did not attend the Hearing and was not represented.  

The respondent was represented by Mrs M McKenna, Solicitor, of the Crown Solicitor’s Office.

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

(i)	Whether the claimant has failed to actively pursue his claim.

(ii)	If so, whether the claimant’s claim should be struck out for failing to actively pursue it.

(iii)	Whether the claimant has failed to comply with the Tribunal’s Orders in respect of Discovery, Additional Information and Witness Statements, and, if so, whether the respondent can receive a fair Hearing.

(iv)	If not, whether the claimant’s claim should be struck out for failing to comply with the Tribunal’s Orders.  

(v)	If the claimant’s claim is not struck out, whether the proceedings should be stayed for the reasons set out by the claimant in his e-mails of 24 May 2013 and 27 May 2013.  

2.	On 27 June 2012 the claimant presented a claim containing complaints of unlawful discrimination on the ground of his religion and unfair dismissal.  

3.	On 7 August 2012 the respondent presented a response contending that the claimant’s dismissal was fair and denying that the respondent had discriminated against the claimant as alleged or at all.

4.	On 4 September 2012 the President directed that both claims would be heard and determined by the Fair Employment Tribunal.

5.	By correspondence dated 18 September 2012 the parties were notified that a Case Management Discussion would take place on 9 October 2012 to identify the issues to be determined by the Tribunal, to make appropriate Case Management Orders and to list the case for Hearing within the period December 2012 to February 2013.  

6.	By correspondence dated 5 October 2012, the claimant sought a postponement of the Case Management Discussion because he was awaiting advice from his trade union.  The claimant informed the Tribunal that his mother had been suffering from a debilitating illness for a protracted period of time, that he had been providing care for her, and that he was therefore extremely anxious to press on with his case, as it was an unwelcome intrusion into his caring responsibilities, but that he did not wish to ignore any advice from his trade union.  The respondent objected to the claimant’s postponement application.  The parties were informed that a Chairman of the Tribunal had granted a four week adjournment but had made it clear that he expected no further adjournments of the case.  By correspondence dated 10 October 2012 the claimant e-mailed the Tribunal to assure the Chairman that he was extremely anxious to progress his case against the respondent subject to two considerations:-

(1)	firstly and most importantly his mother’s deteriorating health which he found very demanding and extremely stressful to deal with and which he stated would take precedence over everything else; and

(2)	that he was awaiting advice from his trade union.

Among other things the claimant also informed the Tribunal that he would be inviting the leadership of two political parties to monitor the performance of the Tribunals and to either publicly endorse or condemn the Tribunal Services as compromised against his community based on their previous performance and their handling of his case and that in light of his mother’s illness he did not “really care what the Tribunal Chairman states regarding further adjournments.”

The first Case Management Discussion – 25 February 2013 

7.	The first Case Management Discussion was relisted and proceeded before the President on 25 February 2013.  The claimant attended in person and the respondent was represented by Mr Sands, Barrister-at-Law.  To progress the case to Hearing the President went through the draft list of issues, which had been prepared by the respondent, with the parties and ordered that a final list of issues was to be lodged with the Tribunal by 15 March 2013.  This was to give the claimant the opportunity to obtain advice from his trade union in relation to them.  

The respondent undertook to provide discovery of its documents to the claimant by 1 March 2013 and the President made the following Orders:-

(i)	the claimant was ordered to notify the respondent’s representative by 22 March 2013 if he required any further documents relating to his claim;

(ii)	the respondent was ordered to serve any request for Additional Information on the claimant by 4 March 2013;

(iii)	the claimant was ordered to respond to any request for Additional Information from the respondent by 22 March 2013;

(iv)	the claimant and any witness he wished to call were ordered to provide a witness statement to the respondent’s representative by 12 April 2013;

(v)	the respondent and any witness it wished to call were ordered to provide a witness statement to the claimant by 10 May 2013;

(vi)	the parties were ordered to agree and provide an index of relevant documents and a bundle of relevant documents to the Tribunal by 13 May 2013 and 6 June 2013 respectively;

(vii)	the case was listed for Hearing from 10 to 14 June 2013, the parties having agreed to those dates.

	The record of that first Case Management Discussion which contained the above undertaking and Orders was issued to the parties on 27 February 2013.  It also contained a Notice which, among other things, informed the parties that failure to comply with any of the Tribunal’s Orders could result in the claim, or the response being struck out.

The second Case Management Discussion – 30 April 2013

8.	A second Case Management Discussion was arranged at the request of both parties and took place on 30 April 2013.  That was because the respondent had not provided its discovery within the agreed time limit and because the claimant had not complied with the Tribunal’s Orders.  The claimant attended in person and the respondent was represented by Mrs McKenna, solicitor.  

8.1	Issues

The final list of issues had not been lodged as ordered because the claimant had not agreed it.  The claimant stated that was because he had ongoing issues with his trade union and had not yet received advice in respect of the issues from them.  As the case was listed for Hearing from 10 to 14 June 2013 the President went through the issues with the claimant and Mrs McKenna and the parties were able to agree the legal issues and the factual issues with some amendments.

8.2	Discovery

The respondent had delayed sending its documents to the claimant until 8 March 2013 and the claimant did not receive or collect them from Royal Mail until 20 March 2013.  The claimant indicated that he had received e-mails as part of a freedom of information request which he wished to have included in the bundle of documents for the Hearing.  The President therefore ordered the claimant to provide discovery of those e-mails to Mrs McKenna by 7 May 2013. 

8.3	Additional Information

The respondent had sent a notice requesting Additional Information to the claimant within the time limit ordered by the President.  The claimant had failed to comply with the Tribunal’s Order that he respond to the respondent’s Notice for Additional Information by 22 March 2013.  Given the proximity of the Hearing and the fact that the claimant was unrepresented, the President went through the Order for Additional Information with the claimant and Mrs McKenna.  In this way the claimant was able to provide some of the additional information in open tribunal and the President extended the time limit for the claimant to provide the outstanding information to the respondent to 7 May 2013.

8.4	Witness Statements

The claimant had been ordered to provide his witness statements to the respondent but had failed to do so.  The President extended the time limit for the claimant to do so.  As the respondent could not provide its witness statements until the claimant had done so, the President also extended the time limit for the respondent’s witnesses to provide their witness statements to the claimant.  The claimant and Mrs McKenna both indicated that they could comply with the extended time limits.  

8.5	The claimant’s application for the proceedings to be stayed

	Having gone through the above matters at the Case Management Discussion on 30 April 2013, the claimant applied for his claim to be stayed so that he could instruct his solicitor to go ahead with civil proceedings and so that a criminal investigation/proceedings could be instituted by him.  The President, mindful of the applicable legal principles (see paragraphs 43 and 44 below), explained the steps the claimant would have to take before such an application would be considered and the reasons why.  Although the claimant informed the President that he had instructed his solicitor because of problems with his trade union and that he would ask his solicitor to get in touch with the Tribunal, no solicitor has come on record for the claimant in this case and no solicitor has notified the Tribunal of the issue of other proceedings.  

9. 	The record of that second Case Management Discussion which confirmed the extended time limit for the Order for Additional Information and Witness Statements, the Order for Discovery and the President’s directions with regard to the steps to be taken before an application to stay proceedings would be considered was issued to the parties on 8 May 2013.  The record also contained a notice informing the parties that failure to comply with any of the Tribunal’s Orders could result in the claim or response being struck out.  On 9 May 2013 the claimant sent an e-mail to the Tribunal.  In relation to his application for the proceedings to be stayed he stated that he had been told previously that this was a straightforward process but that the President had added several caveats namely that he must produce a copy of the civil proceedings or evidence that a Police criminal investigation had been commenced and he requested that the caveats be withdrawn.  In the last paragraph of his e-mail the claimant renewed his application for the proceedings to be stayed as follows:-

“This is not a matter of wasting the Fair Employment Tribunal’s Time.  I have indicated clearly in the Case Management Meeting of 30/04/2013 and in subsequent e-mails of 1/05/2013 and 7/05/2013 that I would like to have the proceedings stayed while legal action is pursued against HMRC managers explicitlyl (sic) to prevent this.  Due to my domestic circumstances and after receiving further advice I cannot pursue both courses of action at the same time.  I am once against requesting that the FET proceedings are stayed until legal action has commenced and concluded against senior HMRC managers.  I have outstanding issues that I would like to work through at the FET.”

10.	By correspondence dated 15 May 2013, the respondent’s representative notified the Tribunal that the claimant had still failed to comply with Tribunal’s Orders notwithstanding the extended time limits.  The respondent’s representative therefore applied for a further Case Management Discussion to be arranged because it was very difficult for the respondent and its witnesses to prepare and to comply with the Tribunal’s Orders with regard to the filing of its own witness statements.   

The third Case Management Discussion – 23 May 2013 

11.	A third Case Management Discussion was therefore arranged and took place on 23 May 2013.  The claimant attended in person and the respondent was represented by Mrs McKenna.  The President reminded the claimant that she had explained the steps to be taken if he wished to apply for a Staying Order at the previous Case Management Discussion on 30 April 2013 and the reasons why those steps were required and the claimant accepted that she had.  The President explained the steps to be taken and the reasons why to the claimant again.  Mrs McKenna pointed out that the claimant had still not complied with the Tribunal’s Orders for Discovery, Additional Information and the provision of witness statements notwithstanding the extended time limits.  She therefore applied for an Unless Order to be issued against the claimant putting him on notice that his claim would be struck out unless he complied with the Orders by 28 May 2013.  

Unless Order

12.	The claimant accepted that he had not complied with the above Orders and indicated that he could comply by 5.00pm on 28 May 2013.  The President was satisfied that the respondent was not in a position to provide its witness statements until it had received the outstanding documentation and the claimant’s witness statements.  As the Hearing was due to commence on 10 June 2013, the President made an Order that unless the claimant complied with the Orders for Discovery, Additional Information and the provision of witness statements by 5.00pm on 28 May 2013 his claim would be struck out without further consideration, notice or hearing.  The record of that third Case Management Discussion on 23 May 2013 and the Unless Order were issued to the claimant that same day.

13.	By correspondence dated 24 May 2013 the claimant notified the Tribunal that he would not be able to meet the Unless Order deadline of 28 May 2013 due to his mother’s debilitating illness and the time consuming and stressful and intensive nature of the care that needed to be provided on a daily basis.  The claimant informed the Tribunal that he had contacted his solicitor’s office following the Case Management Discussion and had an appointment with his solicitor on 29 May 2013 with a view to commencing legal proceedings against HMRC management.  In light of that and his mother and father-in-law’s continuing ill health, the claimant asked for the Unless Order to be revisited.  The claimant again repeated his application for these proceedings to be stayed in the following terms:-

“I have no problem with working through my work related concerns at the FET but feel that given that my Union leadership Public Commercial Services (PCS) has still not provided representation despite correspondence with them, this has been extremely stressful and I can only work through one process at a time.  I was unaware at the Case Management Meeting it was a bank holiday weekend which has made contacting one of my witnesses impossible thus far.  

As stated at the Tribunal I intend to take legal action against HMRC as soon as possible.  I cannot due to my domestic circumstances and following advice pursue both at the same time.  I have advised this in several previous e-mails.  

I am again respectfully requesting that the proceedings are stayed.  If this cannot be done please escalate these concerns to the person charged with running the Fair Employment Tribunal service on behalf of the tax payer.  Please consider this a formal request to stay proceedings until legal action is commenced and concluded.  If a stay of proceedings cannot be accommodated and my case is struck out I am requesting a meeting with the head of the Tribunal service as a matter of urgency and will bring an elected representative to the meeting to discuss concerns.  I have no issue with bringing any of the medical evidence in relation to my Mothers condition to the meeting.  Please specify if this is required.”

The fourth Case Management Discussion – 28 May 2013

14.	The President treated the claimant’s correspondence of 24 May 2013 as an application to set aside the Unless Order and as a further application for the proceedings to be stayed.  By correspondence dated 24 May 2013 the parties were informed that a further Case Management Discussion would take place on 28 May 2013 (the date by which the Unless Order was to be complied with) to consider the claimant’s application.  The claimant was also referred to the Record of the Case Management Discussion on 23 May 2013 which set out the President’s directions in relation to the steps required to be taken before a staying Order application would be considered.

15.	By further correspondence dated 27 May 2013, the claimant gave the Tribunal information about his father-in-law’s health and informed the Tribunal that he had repeatedly requested a stay of proceedings on the grounds that he would be pursuing legal action against HMRC and could not pursue a FET case at the same time.  The claimant then stated that he was “now requesting that the proceedings be stayed due to the continuing ill health of my Mother and Father in Law and until my domestic situation has stabilised”.  The claimant repeated that he had a meeting with his solicitor on 29 May 2013 at which he would be asking his solicitor to initiate proceedings against HMRC as soon as possible.  The claimant then stated that due to recent developments he would not be available on Tuesday 28 May 2013 and that the options were for the Tribunal to wait until his solicitor had issued proceedings which he would then send to the Tribunal or to strike out his case, in which case he would ask his MP and his MLA to intervene directly to address his concerns with the senior management at the FET on his behalf in the interest of equality and the taxpayer.  The claimant finished his e-maiI by emphasising that he had no issue with providing any medical evidence requested by the Tribunal in relation to his current domestic situation and by requesting that the proceedings be stayed until a more opportune time.  

16.	The Case Management Discussion proceeded on 28 May 2013, the claimant having been informed that if he could not attend in person he could participate by telephone conference.  The claimant did not attend and did not participate by way of telephone conference.  The respondent was represented by Mr Sands, Barrister-at-Law.  Having considered the contents of the claimant’s e-mails dated 24 May and 27 May 2013, referred to above, together with the representations of Mr Sands on behalf of the respondent, the President:-

(i)	set aside the Unless Order dated 23 May 2013;

(ii)	postponed the Hearing listed from 10 to 14 June 2013;

(iii)	directed that a Pre Hearing Review be listed for 21 June 2013 to consider and determine the following issues:-

(a)	whether the claimant had failed to comply with the Tribunal’s Orders in respect of Discovery, Additional Information and witness statements and, if so, whether the respondent could receive a fair Hearing;

(b)	if the Tribunal was not satisfied that the respondent could receive a fair Hearing in light of the claimant’s failure to comply with the Tribunal’s Orders for Discovery, Additional Information and witness statements, whether the claimant’s claim should be struck out;

(c)	if the tribunal was satisfied that the respondent could still receive a fair Hearing, notwithstanding the claimant’s failure to comply with the Tribunal’s Orders for Discovery, Additional Information and witness statements, whether the proceedings should be stayed for the reasons set out by the claimant in his emails of 24 May 2013 and 27 May 2013; and.

(iv)	ordered the claimant to provide all medical evidence he intended to refer to or rely on at the Pre Hearing Review to the respondent and to the Tribunal by 12 June 2013. 
  
	The record of the Case Management Discussion was issued to the parties on 3 June 2013.  

17.	On 5 June 2013 the claimant applied for the Pre Hearing Review listed for 21 June 2013 to be stayed until his domestic situation stabilised and on 6 June 2013 the claimant provided the Tribunal with correspondence dated 8 March 2013, 22 April 2013, 29 April 2013 and 20 May 2013 with regard to medical appointments for his mother and a letter from his GP, dated 4 June 2013, identifying his mother’s medical condition and confirming that the claimant was the main carer for his mother.  

18.	The respondent’s solicitor objected to the claimant’s application for a stay of the Pre Hearing Review listed for 21 June 2013 on the grounds that the claimant had failed to comply with a number of Orders in the case and that it was unfair to the respondent to be involved in ongoing litigation in which the claimant was not taking any positive action to bring the proceedings to a conclusion.

19.	By correspondence dated 11 June 2013, the parties were notified that the President having considered:-

•	the claimant’s e-mail of 5 June 2013;

•	the correspondence dated 8 March 2013, 22 March (sic) 2013, 29 April 2013 and 20 May 2013 with regard to medical appointments for the claimant’s Mother;

•	the claimant’s GP’s letter dated 4 June 2013;

•	the respondent’s objection to the claimant’s application;

and having regard to the overriding objective of the tribunals to deal with cases justly, had refused the claimant’s application for a stay of the Pre Hearing Review listed for 21 June 2013 for the following reasons:-

(i)	while the President fully appreciated and was sympathetic to the claimant’s domestic situation, there was no indication in the documentation provided by him when his domestic situation was likely to stabilise and it was not in the interests of justice to postpone proceedings indefinitely;

(ii)	as the claimant’s GP had stated that he was the main carer for his Mother, it was clear that he was not the sole carer and in those circumstances the President was satisfied that it should reasonably be possible for the claimant to arrange for another carer to care for his mother on 21 June 2013;

(iii)	if another carer was not available on 21 June 2013, the claimant would be permitted to participate in the Pre-Hearing Review by way of telephone conference; and

(iv)	alternatively the claimant could submit written representations in relation to each of the issues and matters to be considered and determined at the Pre-Hearing Review.  

20.	By correspondence dated 17 June 2013, the claimant detailed his concerns about the President’s decision to refuse his application for the Pre Hearing Review to be stayed.  He then renewed his application for the proceedings to be stayed until his domestic situation had stabilised and he was in a position to have representation present.  By correspondence dated 18 June 2013, the claimant was notified that the President had directed that the Pre Hearing Review listed for 21 June 2013 would remain listed for the reasons set out in the Tribunal’s correspondence of 11 June 2011 (see paragraph 19 above) and confirmed that he could participate by way of telephone conference or submit written representations.

21.	By correspondence dated 18 and 20 June 2013 the claimant made a further application for a stay on the ground that he was suffering from stress.  He stated that he was willing to provide any further medical evidence that was required with regard to his request.  The claimant also stated that he would not be sending written representations or participating in the Pre-Hearing Review on 21 June 2013 by telephone conference as he did not have the time needed to prepare for the Hearing and as he was physically and emotionally exhausted.

22.	By correspondence dated 20 June 2013, Mrs McKenna notified the Tribunal that the respondent opposed the claimant’s application for a stay in the following terms:-

	“My instructions are to oppose the application for a stay.

The Respondent is sympathetic and appreciates that the Claimant has difficult circumstances at the moment.  I have not seen the medical evidence to which the claimant refers and he has not sent me same despite an Order of the Tribunal dated 28 May 2013.  

		The claimant has not engaged in the process.  He has made a number of allegations against persons within the Respondent organisation and they are entitled to have the case heard within a reasonable timeframe.  It is not right that the claimant issues proceedings making serious allegations and then refuses to prosecute same.  The Respondent’s view is that this is an appropriate case for an application for a strike out.”

23.	Although the claimant’s application for a stay of the proceedings was now on the ground of his own stress due to his domestic situation and although the claimant had provided information to the Tribunal in support of that, it was also clear from the claimant’s correspondence to the Tribunal that his domestic situation was not affecting his ability to pursue other legal proceedings, if these proceedings were stayed.  In light of that apparent inconsistency it was not possible for the President to infer the severity of the claimant’s medical condition or the effect that it was having on his ability to continue with these proceedings.  In light of the guidance given by the Court of Appeal in the Andreou case (see paragraph 40 below) and in particular that given by Arden LJ that stress and anxiety are generic terms which are likely to cover a range of symptoms differing widely in their severity and that “where a party seeks an adjournment on the basis of stress or anxiety, he should expect to produce details of the symptoms, the causes, severity and so on, or to explain why those details cannot be supplied to the Tribunal”.  In light of the fact that the claimant had made it clear that he was willing to provide any further medical evidence that was required with regard to his request (see paragraph 21 above) and in light of the Court of Appeal’s approval of the procedure followed by the Tribunal in the Andreou case (see paragraph 40 below) the President postponed the Pre Hearing Review listed for 21 June 2013, notwithstanding the respondent’s objections, to enable the claimant to obtain a medical report which he was ordered to provide to the respondent’s solicitor and to the Tribunal by 10 July 2013 detailing:-

			(1)	the claimant’s medical condition;

			(2)	when the medical condition commenced;

			(3)	the prognosis for that medical condition;

(4)	whether that medical condition would prevent the claimant providing the respondent’s solicitor with:-

(i)	the e-mails he had received as part of a freedom of information request;

(ii)	details of all jobs for which he had applied since the date of his dismissal which the claimant undertook to provide to the respondent’s solicitor at the end of the Case Management Discussion on 30 April 2013 and did not do so;

(iii)	details of all income the claimant has received, including state benefits, from the date of his dismissal and the precise amount of same; 

(iv)	his witness statement and those of his witnesses; 

and if so, when the claimant would be likely to be medically able to provide those documents and information;

(5)	whether the claimant’s medical condition would prevent him attending a Pre Hearing Review which would last no more than half a day and at which he would be given the opportunity to address the Tribunal on the following issues:-

(a)	whether the claimant had failed to comply with the Tribunal’s Orders in respect of Discovery, Additional Information and Witness Statements and, if so, whether the respondent could receive a fair Hearing;

(b)	if the Tribunal was not satisfied that the respondent could receive a fair Hearing in light of the claimant’s failure to comply with the Tribunal’s Orders in respect of Discovery, Additional Information and Witness Statements, whether the claimant’s claim should be struck out;

(c)	if the Tribunal was satisfied that the respondent could still receive a fair Hearing, notwithstanding the claimant’s failure to comply with the Tribunal’s Orders in respect of Discovery, Additional Information and Witness Statements, whether the proceedings should be stayed for the reasons set out by the claimant in his e-mails of 24 May 2013 and 27 May 2013;

(6)	if so, when the claimant would be likely to be medically able to attend such a Hearing which the claimant would be entitled to participate in by way of telephone conference or by way of submission of written representations.

	The parties were further notified that the President would then consider the way forward in light of the medical opinion provided and the respondent’s comments thereon.  The claimant was also informed that it was therefore important that the Tribunal’s letter, which contained the President’s Order, as set out above, was provided to the claimant’s doctor so that the doctor would be in a position to address all the required matters.

24.	The claimant failed to provide the medical report to the respondent’s solicitor or the Tribunal and, on 11 July 2013, the respondent’s representative applied for the claimant’s claim to be struck out for want of prosecution.  In support of her application Mrs McKenna stated that the claimant had levelled a number of serious allegations against the respondent and its employees and that to date a number of persons identified by the claimant as alleged discriminators were not aware of the basis on which those allegations were made as the claimant had ignored Orders of the Tribunal and had failed to prosecute his case.  

25.	In light of the claimant’s failure to comply with the Tribunal’s Order to obtain and provide a report in relation to his own medical condition by 10 July 2013, the President directed that the Pre-Hearing Review, which had been postponed from 21 June 2013, to enable the claimant to obtain and provide that report, should be relisted for 1 August 2013 to consider the following issues:-

(i)	Whether the claimant had failed to actively pursue his claims.

(ii)	If so, whether the claimant’s claims should be struck out for failing to actively pursue them.

(iii)	Whether the claimant had failed to comply with the Tribunal’s Orders in respect of Discovery, Additional Information and Witness Statements, and, if so, whether the respondent could receive a fair Hearing.

(iv)	If not, whether the claimant’s claims should be struck out for failing to comply with the Tribunal’s Orders.  

(v)	If the claimant’s claims are not struck out, whether the proceedings should be stayed for the reasons set out by the claimant in his e-mails of 24 May 2013 and 27 May 2013.  

26.	The Pre Hearing Review was rearranged for 13 September 2013 at the request of the respondent and without objection from the claimant.  In an e-mail dated 25 July 2013, the claimant confirmed that he had spoken to Mrs McKenna about the postponement.  He then stated 

“I have previously requested that the proceedings be stayed.  I have also provided medical evidence from my GP re my Mother’s health.  Please confirm that the Tribunal Management considers this not to be good enough.  I do not see the point in any further Case Management Meetings.  Given my current domestic responsibilities I would have been unable to attend the meeting scheduled for August.01/08/13.  I doubt very much if I will be able to attend any future meetings in the interim.  

		The issue is very straightforward.  The Tribunal can make the decision to stay the proceedings or strike the case out despite the representations and evidence I have provided previously.

		As stated in my previous e-mails.  I believe that the Tribunal will make the decision to stay the proceedings based on what is practical and ethical and not what is acceptable or convenient for HMRC and their representatives.”

He then finished by informing the Tribunal that the matter was continuing to be dragged out and if it was not resolved quickly he would ask the MPs for West and South Belfast to  intervene directly.

27.	The claimant was again informed, by correspondence dated 6 August 2013, that, in addition to attending the Pre Hearing Review in person or submitting written representations, he could participate in the Pre Hearing Review by way of telephone conference.  In that correspondence, it was made clear to the claimant that:-

(i)	his application for a stay of the proceedings pending alternative legal action, was the fifth issue to be considered at the forthcoming Pre-Hearing Review;

(ii)	his application for a stay of the proceedings until his domestic situation stabilised in light of his mother’s health, had been refused by the President for the reasons which were detailed in the Tribunal’s letter of 11 June 2013 (see paragraph 19 above); and

(iii)	in light of his further application for a stay of the proceedings on the ground that he was suffering from stress, the President had postponed the Pre Hearing Review, listed for 21 June 2013, to enable him to obtain and provide a medical report to the respondent’s solicitor and to the Tribunal by 10 July 2013, detailing the matters set out in the Tribunal’s e-mail of 20 June 2013 (see paragraph 23 above) so that the President could consider the way forward in light of that medical evidence; and

(iv)	he had not provided the required medical report and the Pre-Hearing Review was therefore relisted and would proceed on 13 September 2013.    

28.	Although the claimant had been notified by correspondence dated 20 June 2013 and 6 August 2013 (see paragraphs 23 and 27 above) that he was to obtain a medical report in relation to his own medical condition, detailing the matters set out in the Tribunal’s e-mail of 20 June 2013, and that it was important for him to provide the Tribunal’s letter to his doctor so that his doctor would be in a position to address all the required matters, the claimant, by correspondence to the Tribunal dated:-

(i)	20 August 2013 informed the Tribunal that his GP had requested that the respondent’s solicitor and the Tribunal Chairman write to him and “state clearly what they require regarding the provision of a Medical Report on my Mother’s health which has been requested by the Chairman of the Tribunal”;

(ii)	23 August 2013 asked if the Tribunal Chairman could confirm that “having directed that a medical report on my Mother’s Health be compiled in relation to my request to stay proceedings” if the Tribunal Chairman or the respondent’s solicitor had written to his GP requesting “a full medical Report on my Mother’s Health as directed that they should by my GP”; and

(iii)	31 August 2013 again asked if the Tribunal Chairman or the respondent’s solicitor had written to his GP as his GP needed to know what information was being requested by the respondent’s solicitor and the tribunal Chairman before he could consider compiling a medical report on his mother’s condition;

(iv)	6 September 2013 again asking for confirmation whether either the Tribunal Chairman or the respondent’s solicitor had written to his GP stating the nature of the information they needed to be included in the requested medical report.  

29.	By correspondence dated 10 September 2013, the Tribunal Office wrote to the claimant and the respondent’s representative in the following terms:-

		“The President has directed me to inform parties that the Pre-Hearing Review was originally listed for 21 June 2013 and was postponed to enable the claimant to obtain and provide a medical report to the respondent’s solicitor and to the Tribunal by 10 July 2013 detailing the claimant’s medical condition, not his mother’s medical condition, together with other matters which were set out in the Tribunal’s e-mail of 20 June 2013 to the claimant.

		The last sentence of the e-mail made it clear that it was important for the e-mail to be provided to the claimant’s doctor so that the claimant’s doctor would be in a position to address all the required matters.

		The claimant did not provide the required medical report and the Pre Hearing Review was therefore relisted for 13 September 2013 and will remain listed.  The claimant may raise any other matters set out in his e-mails at the Pre Hearing Review.”

30.	By correspondence dated 10 September 2013, the claimant informed the Tribunal, among other matters, that he would not be attending the Pre Hearing Review on 13 September 2013 as he had other commitments, primarily in relation to his mother’s health.  He also stated that his GP had made it very clear that he would not consider releasing any medical information in relation to his mother’s health until he received a request in writing from the Chairman of the Tribunal or from Mrs McKenna, the respondent’s solicitor.  He again asked if either the Tribunal Chairman or the respondent’s solicitor had complied with his doctor’s request.  He further stated that he fully intended to prosecute his claim when the “intense stress and domestic pressure” he was under had eased.
 
31.	By correspondence dated 12 September 2013, the Tribunal Office replied to the claimant as follows:-

“I acknowledge receipt of your Email below.  Your Email and this reply have been copied to the respondent’s representative for their information.

I would refer you to our Email of 10 September 2013 … which confirms that the President adjourned the Pre Hearing Review which had originally been listed for 21 June 2013 to 13 September 2013 to enable you to obtain and provide a medical report in relation to your medical condition.  For the avoidance of doubt the Tribunal does not require a medical report in relation to your mother’s medical condition.”

32.	By two e-mails dated 12 September 2013, the claimant informed the Tribunal, among other matters, that he would not be able to attend the Pre Hearing Review due to domestic concerns.  In relation to his applications for the proceedings to be stayed, he stated:-

	“My position regarding staying the Tribunal remains the same.  The Tribunal Chairman has already been given extremely sensitive evidence regarding the medical condition of my mother which confirm my role as primary carer.  Concerns would be raised if the case was forced to continue by the Tribunal while such trying and stressful circumstances regarding my domestic situation persists.

		My GP is willing to provide a full medical report regarding the stress my present domestic circumstances and the conduct of HMRC managers has caused.”  
 
The Pre-Hearing Review – 13 September 2013 

33.	The claimant did not provide the required medical report and did not attend the Pre-Hearing Review or participate in it by telephone conference.  Mrs McKenna made the following submissions to the Tribunal.

The claimant’s failure to actively pursue his claim

33.1	This case has been going on for some considerable time.  There have been a number of Case Management Discussions at which the President has made a number of Orders in relation to Additional Information, Discovery and the provision of Witness Statements.

33.2	The claimant has not complied with any of these Orders.

33.3	In his claim form, the claimant identified three co-employees as alleged discriminators.  At the Case Management Discussion on 30 April 2013 the claimant identified a further eight co-employees as alleged discriminators.  These employees are not fully aware of all the allegations being made against them.  This obviously causes them worry and concern and they wish the matter to proceed promptly.  

33.4		In the case of Riley –v- The Crown Prosecution Service, the Court of Appeal held that every litigant is entitled to a fair and prompt hearing and the claimant in this case does not appear to wish to facilitate that.  He has instigated proceedings in which he has made serious allegations and now he seeks to stay these proceedings indefinitely.

33.5	To date this litigation has cost the respondent a considerable amount of money.  The claimant says he will do one thing in his correspondence, yet his actions do not bear out his words.  

33.6		The large amount of e-mail correspondence sent by the claimant indicates that he is obviously intelligent and articulate.  Yet, he either does not understand the President’s very clear Orders or he is flagrantly and blatantly disregarding them.   

33.7	There is a real risk of prejudice to the respondent in this case.  That is because a fair trial will not be achievable if the claimant achieves his aim of having proceedings stayed until his domestic circumstances have stabilised.  Not only is there a worry that the respondent’s witnesses will suffer and will continue to suffer but there is also the concern about recollections fading as time progresses and witnesses becoming unavailable for any number of reasons.  

33.8	The claimant has not given any indication as to when he anticipates he would be able to engage positively in this litigation.  

33.9		At the Case Management Discussion on 30 April 2013 the claimant indicated that he wished to have these proceedings stayed pending initiation of civil and criminal proceedings.  However, the claimant has ignored the President’s directions in respect of the steps to be taken before such an application would be considered.  The claimant has had ample time since that Case Management Discussion to initiate those proceedings or to contact the PSNI with regard to possible criminal proceedings, yet there has been no indication that he has done either.  This is very concerning for the 11 co-employees he has identified as having unlawfully discriminated against him on the ground of his religion particularly as they are not fully aware, in the absence of the provision of witness statements, as ordered by the President, of all the allegations being made against them.

33.10		The claimant has failed to attend this hearing or to participate by way of telephone conference.

33.11		The reality is that the claimant does not want to engage in the process and just wishes to buy time by delaying proceedings.  In some ways the claimant is putting off the awful moment when he has to engage.  Bearing in mind the overriding objective of the Tribunal and the right of litigants, which includes the respondent as well as the claimant, to a fair trial within a reasonable time, it would be very unfair to the respondent if the Tribunal was to allow that and it would not be consistent with the overriding objective.

33.12		The Employment Appeal Tribunal held in the Rolls Royce Plc –v- Riddle that 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 an inordinate and inexcusable delay such as to give rise to a substantial risk that a fair trial would be not be possible or there would be serious prejudice to the respondent.  

	In this case the claimant’s failure to pursue his claim falls into the first category and in light of the circumstances, set out in the above submissions, his claim should be struck out for failing to actively pursue it.   

The claimant’s failure to comply with the Tribunal’s Orders

33.13	The claimant has received ample opportunity to comply with the Tribunal’s Orders but has failed to do so.  Without compliance with those Orders, the eight individual co-employees, who were named by the claimant at the Case Management Discussion on 30 April 2013, as alleged discriminators, do not know the full extent of the case against them and cannot therefore prepare properly for or receive a fair hearing.  Further, as time goes by it will become more difficult for witnesses to have good recall.

33.14	The claimant has also shown a blatant disregard for the Tribunal’s Order that he provide a report in relation to his own medical condition even though the Unless Order was set aside to enable him to do so.  In those circumstances the claimant’s claim should also be struck out for failing to comply with the Tribunal’s Orders.  

The claimant’s application for the proceedings to be stayed

33.15	The claimant applied for the proceedings to be stayed pending initiation of civil and criminal proceedings at the Case Management Discussion on 30 April 2013.  The President set out the steps to be taken by the claimant before such an application would be considered.  The claimant has had ample opportunity since April 2013 to follow those steps but there has been no indication that proceedings have been initiated in the County Court or High Court or that the claimant has been in contact with the PSNI with regard to possible criminal proceedings.  In those circumstances the respondent opposed the claimant’s application to have the proceedings stayed pending civil or criminal proceedings.

The statutory Provisions

34.	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.

35.	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.

36.	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

37.	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.”

38.	The Northern Ireland Court of Appeal made it clear in the case of Magill –v- The Ulster Independent Clinic & Others (2010) NICA33 that the:

“Application of legal principles poses a duty on the court to examine cases objectively without fear or favour to any party, represented or unrepresented.  While courts are conscious of the difficulties faced by a personal litigant representing herself and will strive to enable that person to present her case as well as they can, the dictates of objective fairness and justice preclude the court from in any way distorting the rules or the requirements of due process because one party is unrepresented.”  

39.		At paragraph 3 of his judgment in James Robert Peifer –v- Castlederg High School and Western Education & Library Board [2012] NICA21, Lord Justice Girvan stated:-

		“The overriding objectives, which are of course, always intended to ensure that justice is done, impel a tribunal to exercise its control over the litigation before it robustly but fairly.  Tribunals can expect the appellate and supervisory courts to give proper and due weight to the Tribunal’s decisions made in the fulfilment of their duty to ensure the overriding objectives.  Tribunals should not be discouraged from exercising proper control of proceedings to secure those objectives through fear of being criticised by a higher Court which must itself give proper respect to the Tribunal’s margin of appreciation in the exercise of its powers in relation to the proper management of the proceedings to ensure justice, expedition and the saving of costs.  Tribunals should be encouraged to use their increased costs power set out in Regulations 38 et seq of the Rules of Procedure to penalise time wasting or the pursuit of cases in a way which unduly and unfairly increases the costs falling on opponents.  Tribunals should feel encouraged to set time limits and timetables to keep the proceedings within a sensible timeframe.”  

40.	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. …”

At paragraph 65, Arden LJ stated:-

	“Stress and anxiety are generic terms.  Mr John Cavanagh QC, who has appeared for the appellant, has not suggested that stress and anxiety cannot constitute an illness.  However, as I see it those terms are likely to cover a range of symptoms differing widely in their severity.  Where a party seeks an adjournment on the basis of stress or anxiety, he should expect to produce details of the symptoms, the causes, severity and so on, or to explain why those details cannot be supplied to the tribunal.  When a party applies for an adjournment he must bear in mind the need for complaints to employment tribunals in these sorts of matters to be heard promptly, the need to consider the interest of other parties to the proceedings and the need to avoid unnecessary waste of tribunal time and scarce resources.”
   
41.	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. …”

42.	In Weir Valves –v- Armitage (2004) ICR371 the Employment Appeal Tribunal held that the guiding consideration in deciding whether to strike out a case on the ground of disobedience to an Order is the overriding objective which requires justice to be done between the parties.  “The Courts should consider all the circumstances.  It should consider the magnitude of the default, whether the default is the responsibility of the solicitor of the party, what disruption, unfairness or prejudice has been caused and 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.”                 

43.	The applicable legal principles in relation to the making of a staying order are set out at paragraphs 760 to 782 of Division P1 of Harvey on Industrial Relations and Employment Law (Harvey).  At paragraph 774.01 it is stated:  “A stay of tribunal proceedings will not, however, be granted where no proceedings have been instituted in the High Court.  In Halstead –v- Paymentshield Group Holdings Ltd (2012) IRLR 586 the Court of Appeal overturned a decision of the EAT which had granted a stay of unfair dismissal and holiday pay claims in circumstances where, although no High Court proceedings had yet been issued, the claimant had indicated an intention to do so and had sent a pre-action letter under the CPR to the respondents, together with draft particulars of claim in respect of a perspective action for, inter alia, breach of contract.”

44.	It is clear from paragraphs 776 to 781.01 of Harvey that tribunal proceedings may be postponed or stayed pending the outcome of a criminal trial or in some cases the completion of police investigations but there is no authority which would entitle the Tribunal to postpone or stay proceedings when a police investigation has not been instituted.  At paragraph 776 of Harvey, it is stated that even where a police investigation has been instituted or when a criminal trial is pending, 

“It does not, however, follow that, just because there is a correlation between the charges and the reasons for dismissal, a postponement will be granted.  Factors to be taken into account will include the delay before the criminal trial is heard, the nature of the charges, the nature of the issues inherent in both sets of proceedings, and the likely prejudice to the parties of granting or refusing a stay.”
	
Decision

(i)	Whether the claimant has failed to actively pursue his claim.

(ii)	If so, whether the claimant’s claim should be struck out for failing to actively pursue it.

45.	Having considered the contents of all the documents and correspondence in this case, including those summarised above, together with Mrs McKenna’s submissions at the Pre Hearing Review, the relevant statutory provisions and the principles of law as set out above, the President was satisfied that despite the numerous efforts of the Tribunal, the claimant failed to take reasonable steps to progress his claim to Hearing.  The President was also satisfied that the manner in which the claimant 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 this claim.  While the President was mindful of the fact that striking out a claim is the most serious of sanctions, the President was satisfied that:-

 (i)	in light of the number of opportunities the claimant was given to comply with the Orders and directions that were made so that his claim could be progressed;

(ii)	the fact that the claimant was given notice on several occasions of the consequences of failing to comply with the Orders, which included the striking out of his claim;

(iii)	the fact that the President had already issued an Unless Order and set it aside to enable the claimant to provide a medical report in relation to his own condition;

(iv)	the fact that the claimant failed, without satisfactory explanation, to provide the required medical report or to attend the Case Management Discussion on 28 May 2013, when he appeared to have no difficulty attending an appointment with his solicitor on 29 May 2013 or the Pre-Hearing Review; and

(v)	the fact that the right of every litigant to a “fair trial within a reasonable period” is an entitlement of both parties to the case and includes the 11 co-employees against whom the claimant made allegations of unlawful discrimination on the ground of his religion;

the President was satisfied that it would not be just and equitable to allow the claimant to continue to have access to the Tribunal for his claim and therefore struck out the claimant’s claim for failing to actively pursue it.   
 
(iii)	Whether the claimant has failed to comply with the Tribunal’s Orders in respect of Discovery, Additional Information and Witness Statements, and, if so, whether the respondent can receive a fair Hearing.

(iv)	If not, whether the claimant’s claim should be struck out for failing to comply with the Tribunal’s Orders.  

46.	Having decided to strike out the claimant’s claim on the ground of his failure to actively pursue it, it was not necessary to determine the third and fourth issues.  However, as the President made clear at the Pre-Hearing Review, had the claimant’s claim not been struck out for failing to actively pursue it, the President would have struck it out for failing to comply with the Orders for the following reasons:-

(i)	the President was satisfied that the claimant had repeatedly failed to comply with the Tribunal’s Orders notwithstanding extensions of time having been granted;  

(ii)	the President was also satisfied that without compliance with those Orders, particularly the Order for witness statements, the respondent and in particular the 11 individual co-employees against whom the claimant made allegations of unlawful discrimination on the ground of his religion, could not properly prepare to defend the claimant’s claim and could not therefore receive a fair hearing;  

(iii)	the claimant had received several Notices in relation to the consequences of not complying with the Tribunal’s Orders which included his claim being struck out.  He had also received an Unless Order giving him a final opportunity to comply with the Tribunal’s Orders or to have his claim struck out.  Although that Unless Order was set aside to enable the claimant to obtain and provide a medical report in relation to his own medical condition he failed, without satisfactory explanation, to do so.

(v)	If the claimant’s claims are not struck out, whether the proceedings should be stayed for the reasons set out by the claimant in his e-mails of 24 May 2013 and 27 May 2013.  

47.	In light of the President’s decision to strike out the claimant’s claim for failing to actively pursue it, it would not be appropriate for the President to consider the claimant’s application to stay these proceedings pending the commencement and conclusion of other civil and/or criminal proceedings.  However, even if the President had not struck out the claimant’s claim, as the claimant has still not notified the Tribunal and provided confirmation that he had commenced other legal proceedings or that a criminal investigation had been instituted by the PSNI, despite having informed the Tribunal on 24 and 27 May 2013 that he had an appointment with his solicitor on 29 May 2013 at which he would be instructing his solicitor to initiate other legal proceedings against the respondent as soon as possible it would not have been appropriate to make such an Order.

______________________________________
E McBride CBE
President

Date and place of hearing:  13 September 2013, Belfast		

Date decision recorded in register and issued to parties: