THE INDUSTRIAL TRIBUNALS

CASE REFS:   2542/06
2567/06

CLAIMANT:			Margaret Brady

RESPONDENTS:		1.	Northern Ireland Commissioner for Children and
Young People
2.	The Office of the First Minister and
Deputy First Minister

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that:-

(1)	The claimant’s application for a ‘stay’ is refused.

(2)	The Commissioner’s application for a strike-out is also refused.

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Buggy

Appearances:
The claimant was represented by Ms E Burnett, Solicitor, of McKinty & Wright, Solicitors.
The first-named respondent (“the Commissioner”) was represented by Ms M Lewis, Barrister-at-Law, instructed by Jones & Cassidy, Solicitors.

REASONS

1.	I orally informed the parties of the above decisions at the conclusion of the hearing of this Pre-Hearing Review. As promised, I now provide written reasons in respect of those decisions. (In the meantime, the proceedings have been terminated, because the claimant has withdrawn all her claims against the Commissioner).

2.	These proceedings arose out of what the claimant alleged was bullying, on the part of other members of staff within the Commissioner’s unit which, according to the claimant, constituted repudiatory conduct (in the context of the claimant’s contract of employment) and which also constituted sex discrimination. The claimant was employed by the Commissioner.  She was never employed by OFMDFM (‘the Office’).  Some time ago, she abandoned her constructive dismissal proceedings against the Office.  However, until recently, she had continued her claim for sex discrimination against the Office.

3.	By agreement, this case was listed for hearing from 31 March 2008 – 11 April 2008 inclusive.  

4.	At a Case Management Discussion (a ‘CMD’), which was held on 7 September 2007, I ordered, by agreement, that the claimant, and any witness she wishes to call, were under an obligation to provide a witness statement to the respondents’ representative by 31 January 2008.  At a CMD which was held in January 2008, that deadline was extended, by agreement, until 7 February 2008.  The claimant has not complied with those directions.  

5.	In the course of the January CMD, I directed the claimant to write to the respondents, by 22 January 2008, identifying any servant or agent of the Office who, according to the claimant, was guilty of discrimination against her, specifying the date or dates of any relevant “act” of discrimination.  The claimant did not comply with that direction.  

6.	As a result of those non-compliances, both respondents sought a pre-hearing review, for the purpose of determining the following issue:-

“Whether the proceedings should be struck out because of the claimant’s non-compliance with directions of the tribunal, in respect of the provision of a witness statement and in respect of the provision of certain information to the second-named respondent (in connection with allegations of discrimination which have been made in respect of servants or agents of that respondent)?”

I directed that the case should be listed for a pre-hearing review (‘PHR’) on that issue.  

7.	However, the claimant has subsequently withdrawn her claims against the Office.  Accordingly, for the purposes of this PHR, I treated the relevant  issue as consisting only of the following:-

“Whether the proceedings should be struck out because of the claimant’s non-compliance with the direction of the tribunal in respect of the provision of a witness statement.”

8.	According to the directions which were given during the September 2007 CMD, the respondents were to furnish their witness statements by 22 February 2008.  In those circumstances, the solicitors for the Commissioner wrote to the claimant to express concern about her non-compliance with the obligation to serve her witness statement by 7 February 2008.  In response to those expressions of concern, a Ms Roisin Brady-Moyes replied on the claimant’s behalf, in the following terms:-

“I am replying on Margaret’s behalf.  Unfortunately Margaret is unwell and is unable to address any of your correspondence currently.  I can arrange for the collection of the documents.  In the meantime, Margaret will be producing a letter from her doctor for the Chair of the tribunal with a view to requesting a delay in proceedings until such time as she is able to deal with this business.”

9.	By letter dated 19 February 2008, the claimant wrote to the Office of the Tribunals in the following terms:-

“I am writing to request a delay in proceedings relating to my case.  In recent months I have been in ill-health and my doctor has advised that I refrain from engaging in anything that is giving rise to additional stress.  I am currently unable to continue with my case against [the Commissioner and the Office].  In the event that this situation extends beyond Easter and my health does not improve I will give consideration to discontinuing this action against the two parties named above.  Should this be the case, withdrawal of my complaint will be dependent on conditions to be set out at a later date.  I enclose of a letter prepared by GP.  Should you wish any specific details I am happy to provide these in confidence.”

10.	The following letter from a Dr Nicholson was received and presumably was the letter referred to in the claimant’s letter of 19 February 2008.  The Dr Nicholson letter dated 13 February 2008, mentioned the name of the claimant in its heading and consisted only of the following:-

“This lady is currently attending the surgery with stress symptoms and uncontrolled blood pressure.  She’s wishes to postpone her forthcoming court case.”

11.	A further CMD was arranged for the purpose of discussing the correspondence from the parties which had been received during the month of February 2008.  That CMD took place on 26 February 2008, at 4.30 pm.  The claimant was neither present nor represented at that CMD.  (She had notified the Office of the Tribunals beforehand to that effect).

12.	On 21 February 2008, the claimant sent an e-mail to Mr Andrew Quinn, a clerk of the Office of the Tribunals.  That e-mail was in the following terms:-

“Thank you for your e-mail – however I have to advise you that I will be unable to attend this [CMD] on the date specified and I am rather surprised that the Chairman has directed as he has done given recent correspondence from me.  I am unable for health reasons to attend this hearing or undertake any work associated with my case until my health improves.  The          stress-related symptoms I am experiencing include trapped nerves and muscle spasms in my back which are extremely painful; high blood pressure and other symptoms.  It is not physically possible for me to attend.  I will however seek to ensure someone is able to attend as my representative”

13.	Having considered the relevant correspondence, I decided to proceed with the 26 February 2008 CMD in the absence of the claimant.

14.	In the course of that CMD, I noted that the claimant had, in effect, applied for a ‘stay’ of these proceedings.  I also noted that the respondents were asking that the proceedings be struck out (on the basis that the claimant had failed to comply with the tribunal’s directions).  

15.	Against that background, at the 26 February 2008 CMD, I directed that there should be a pre-hearing review, on 14 March 2008, for the purpose of addressing those two matters.

16.	I noted that the claimant had failed to comply with my direction for the provision of witness statements.  I also noted that, as a result of that non-compliance, it would not now be possible, if the case was to proceed as planned in March 2008, to insist upon the parties providing witness statements.  Accordingly, at the 26 February 2008 CMD, I directed that, at the March/April 2008 hearing, evidence would now be taken by way of oral testimony only (without any prior exchange of witness statements).  

17.	At the 26 February 2008 CMD, the respondents made it clear that they intended to make a claim against the claimant in respect of any extra costs incurred by them as a result of the failure of the claimant to comply with the witness statements direction.  At that CMD, I expressed the view that, if the case did go ahead in March/April 2008, the costs issue was one best left for determination by the tribunal tasked with the hearing of the main case.  

18.	I also directed that the claimant was to provide a written statement, from a medical doctor by 7 March 2008, covering all relevant health issues and, in particular, addressing the following issues:-

“(1)	Is the claimant ill?  If so, what is the nature of her illness, or illnesses?

(2)	Is the claimant currently medically unfit to provide information to the respondents about the nature of her claim?  If so, when did unfitness in that connection begin and how long is that unfitness likely to last?

(3)	Is the claimant currently medically unfit to draft witness statements?  If so, when did that unfitness in that connection begin and how long is that unfitness likely to last?

(4)	Will the claimant be unfit to give evidence in the proceedings during the scheduled March/April 2008 hearing and, if so, how long is the unfitness in that connection likely to last?”

19.	I drew the attention of the parties to the discussion of relevant issues which is to be found in ‘Harvey on Industrial Relations and Employment Law’ at Division T, Paragraphs 754 – 759.  Copies of those paragraphs were sent, at the end of February, to the claimant, along with the CMD record. 

20.	On 7 March 2008, a letter was received from a Dr S Higgins, at the Springfield Road Surgery in Belfast.  That letter referred to the claimant in its title and consisted of the following:-

“My colleague wrote to you last month explaining that Margaret suffers from stress and hypertension.  Margaret informs me that you want a more specific report.  I would be grateful if you could write to me to clarify exactly what you are requesting and the purpose of such a report.”

21.	As noted above, the claimant had already been given clear details of what the tribunal required.   

22.	On 7 March 2008, the claimant sent an e-mail to administrative staff within the Office of the Tribunals.  That e-mail was in the following terms:-

“Further to the directions of the Chairman outlined in paperwork I received on Saturday 1 March and then on Wednesday 5 March, I have spoken to my doctor and asked her to provide me with additional details regarding health issues.  I understand that these details are to be lodged today – however I was not able to get an appointment with my GP until Tuesday 4 March.  I will be speaking to her today again and hope that she will send a fax to yourselves by the end of today.  If this is not possible I will ensure that the information you requested is with the Tribunal no later than Tuesday 11 March.

Given that I only received the paperwork from yourselves this week and had to arrange for a doctor’s appointment – I feel the timeframe given for return of information was not realistic.”

23.	My comments on the realism of the timeframe are as follows.  First, the claimant knew, by 1 March 2008 at the latest, what was required, in terms of medical information.  Secondly, the information required was not very complex and did not require any test to be carried out.  Thirdly, because of the imminence of the hearing, time was short.  

24.	On 11 March 2008, at the request of a secretary in the Springfield Road Surgery, a copy of the relevant direction of 26 February 2008 (the direction regarding the detailed medical information which was being required) was copied to that Surgery by fax.  

25.	A letter dated 11 March 2008 was received from the Springfield Road Surgery.  That letter refers to the claimant in the title and consisted of the following:-

“I write once again in relation to the patient above in order to address your particular questions.  I received these questions today 11.3.08, and am preparing this report at short notice to facilitate a proposed hearing on 14.3.08.  

My colleague wrote a letter on 13.2.08 and I wrote a further letter, by patient request, on 7.3.08 in relation to Miss Brady feeling unfit to proceed with the case in question at present.  I am concerned that Miss Brady informs me that the chairman of the tribunal has not seen my letter of 7.3.08.  

I confirm again that this lady suffers from essential hypertension and stress and feels medically unfit to provide information to the respondents about the nature of her claim at this time.  I do not know exactly when ‘unfitness in that connection’ began and due to the nature of the conditions that she is suffering from it is difficult to state a likely time course of disability.  She is under extra pressure at work at present due to her boss being on sick leave and feels unable to cope with any unnecessary other pressure at this time.  

I confirm that this lady feels currently unfit to draft witness statements.  She feels unfit to give evidence in the proceedings during the scheduled March and April 2008 hearing.  

This lady has suffered from anxiety and depression since 2005.  She is on an antidepressant, beta-blocker and antihypertensive medication.  Due to the chronicity of the conditions and the mental health components it is impossible to predict when she may feel fit to proceed with the case.  She hopes the extra stress at work will improve when her boss returns from sick leave.  

Thank you for your consideration.  I trust you will facilitate this lady as best as possible.”

26.	It is far from clear why Dr Higgins was not made aware of the tribunal’s ‘particular questions’ until 11 March 2008, even though those questions were sent out clearly and in writing in the CMD Record of Proceedings which was sent to the claimant on 29 February 2008.

27.	At the PHR hearing, on 14 March 2008, the claimant was not present but she was represented by Ms Burnett.  

The application for strike-out

28.	As a result of the withdrawal of the proceedings against the Office, the only basis for the application for striking out was the application of the Commissioner to have the proceedings struck out because of the claimant’s non-compliance with my direction in respect of the provision of a witness statement.  

29.	I refused to strike out the proceedings because of two factors.  First, I was aware of the fact that the claimant is in employment and therefore would be able to meet any award of costs (in the event of the tribunal hearing the case deciding in favour of the respondents on both of two relevant issues: whether the costs of the proceedings had been increased as a result of the failure to comply with the witness statement direction and, secondly, whether the claimant had acted unreasonably by failing to comply).  Secondly, I considered that, against that background, strike-out for failure to provide a witness statement would be a disproportionate sanction.  

30.	Because of that conclusion, I did not have to consider, in any detail, the question of whether or not the claimant was at fault in failing to comply and, if so, the extent of any relevant misconduct and the existence, or non-existence, of any mitigating circumstances.

The application for a postponement of the PHR

31.	Ms Burnett asked me to postpone the hearing of this PHR, mainly so that she could seek to obtain better or alternative medical evidence.  I declined to postpone the PHR, against the following background and in the following circumstances.  First, the claimant had been notified, in a very clear manner, as to precisely what was required, by way of medical evidence, in the Record of Proceedings which had been issued to the parties on 29 February 2008.  Secondly, a resolution of the ‘stay’ issue was urgent, because of the imminence of the date scheduled for the main hearing.  

The ‘stay’ issue

32.	Ms Burnett asked for a ‘stay’ of the proceedings until September, on the basis that the claimant’s boss might be back at work at that stage; and the claimant’s perceived level of stress might be reduced as a result; and she might, in those circumstances, be able to face the hearing.

33.	I refused the application for a ‘stay’, against the following background and for the following reasons.

34.	I bore very much in mind the comment of Peter Gibson LJ in Teinaz  v  London Borough of Wandsworth [2002] IRLR 721, at paragraph 21 of the judgment, when he stated the following:-

“A litigant whose presence is needed for the fair trial of a case, but who is  unable to be present through no fault of his own, will usually have to be granted an adjournment however inconvenient it may be to the tribunal or court and to the other parties.  That litigant’s right to a fair trial … demands nothing less.”

35.	However, I also noted that the Court of Appeal in Teinaz stated that if a party is seeking an adjournment, the onus is on that party to prove the need for such an adjournment.

36.	If the application is on the ground of ill-health, medical evidence will normally be required to be produced to show that the party is unable to attend.  (See ‘Harvey’ at T/757.02.)

37.	I noted that the various letters from the doctors did not contain, or refer to, any medical advice which recommended that the claimant refrain from attendance at the tribunal for the purpose of giving evidence.  Instead, the letter of 11 March 2008 merely confirmed “… that this lady … feels unfit to give evidence in the proceedings during the scheduled March and April 2008 hearing [Emphasis added]”.  

38.	I also consider it to be significant that the final sentence of the letter merely expresses the hope that the tribunal will be able to ‘facilitate’ the claimant: The letter stops far short of constituting advice that the claimant cannot or should not give evidence at this time.  

39.	These are fact-sensitive proceedings.  The Commissioner is keen to have these proceedings resolved as soon as possible.  If the proceedings were to be ‘stayed’ now, there is no strong reason to believe that the claimant would find it much easier to cope with the proceedings in September 2008.

40.	I accept that the claimant has suffered from anxiety and depression since 2005.  However, I have no evidence that such anxiety or depression has worsened significantly in recent times.  Furthermore, on the basis of Ms Burnett’s instructions, it was clear that the claimant is currently employed in a responsible job, and had not had any lengthy absences (other than short-term, intermittent absences) during the first three months of this year.

41.	The scheduled date for the main hearing was imminent.  There is a public interest in the early resolution of employment claims, especially employment discrimination claims.  The Commissioner’s legal advisers had been making preparations on the basis that the hearing would go ahead.  To postpone the hearing now would cause a significant amount of disruption.

42.	I did not doubt that the claimant felt stressed at the prospect of this hearing.  However, on the basis of all the available medical evidence, I was not satisfied that she was medically unfit to participate in the hearing, and I was not satisfied that she had been medically advised not to do so.

Chairman:

Date and place of hearing:	14 March 2008, Belfast

Date decision recorded in register and issued to parties: