THE INDUSTRIAL TRIBUNALS

CASE REF:	74/03

CLAIMANT:			Stephen Leonard McKeown

RESPONDENT:		Shorts Bros PLC (Bombardier Aerospace)

DECISION ON A PRE HEARING REVIEW

The decision of the tribunal is that:-

(i)	the claimant’s application to have the response struck out and the respondent debarred from defending these proceedings is dismissed, having been withdrawn; and

(ii)	the respondent is ordered to pay £150 and VAT towards the claimant’s costs in respect of this Hearing.

Constitution of Tribunal:

President (sitting alone):	  Miss E McBride

Appearances:

The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by Campbell Stafford Solicitors.

The respondent was represented by Mr E R Murphy of the Engineering Employers Federation.

Reasons

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

(1)	The claimant’s application to strike out the respondent’s response and to debar the respondent from defending these proceedings; and

(2)	the claimant’s application for costs against the respondent.

2.	On 31 December 2002, the claimant lodged claims of unfair dismissal and disability discrimination against the respondent.  The claimant’s claim was one of 453 claims received around this time arising out of a multiple redundancy exercise by the respondent.

3.	Following a Case Management Discussion on 6 June 2007 the case was listed for a Pre Hearing Review on 22-23 November 2007 to determine the disputed issue of disability.

4.	Following a Case Management Discussion on 3 July 2007 a full Hearing was also arranged from 12-30 January 2009 to determine the claimant’s claim of unfair dismissal, and depending on the outcome of the Pre Hearing Review, the claimant’s claim of disability discrimination.  A detailed timetable setting out the steps to be taken to progress the case to Hearing was issued to the parties on 3 August 2007. 

5.	On 30 October 2007 the Pre Hearing Review listed from 22-23 November 2007 was cancelled as the respondent had conceded that the claimant was a disabled person as defined by the Disability Discrimination Act 1995 when the alleged acts of discrimination occurred.

6.	A Case Management Discussion took place on 2 July 2008 to deal with alleged non-compliance by both parties of the timetable issued by the tribunal.  Following a number of helpful submissions by Mr McKee and Mr Murphy, Mr McKee and Mr Murphy agreed to amend the timetable of steps to be taken to progress the case to Hearing.  They also agreed that the case should remain listed from 12-30 January 2009.

7.	By correspondence dated 2 September 2008, the claimant’s solicitor wrote to the tribunal in the following terms:-

		“We refer to the above matter and to the copy Amended Timetable attached hereto.  The Amended Timetable was issued, in respect of this matter, following a Case Management Discussion on 2 July 2008.

		The Engineering Employer’s Federation requested the Case Management Discussion to introduce an amended timetable, which was agreed by all parties.  Despite the respondent’s representative, ironically, drafting the amended timetable they have now failed to comply with step 1.  Step 1 required the respondent to serve their response to the claimant’s facts and allegations by no later than 22 August 2008 however, to date, we have not received same nor received any explanation for the delay.  The respondent was not hesitant in pointing the finger of blame at the claimant for missing a deadline set by the initial timetable yet they apparently do not believe the duty to comply is reciprocal.

		In the interests of ensuring the date for hearing of this matter, in January 2009, is not compromised we would be obliged if you would hold a hearing in relation to this matter to consider an application to Strike out the response or 

make an appropriate Order compelling the respondent to adhere the President’s Order and fixing costs for this application against the respondents.” 

8.	Following that letter this Pre Hearing Review was arranged.  Mr McKee indicated that on the basis of the further amended timetable that had been provided to him by Mr Murphy on the morning of the Hearing, he did not consider that it would be appropriate to proceed with the application to strike out the response and debar the respondent from defending.  On that basis I dismiss the application.

9.	Mr McKee made an application for costs of £350 and VAT on the ground that this Pre Hearing Review was only required by the unreasonable conduct on the part of the respondent in failing to comply with the revised timetable and in failing to communicate any difficulties about doing so with the claimant’s representative which may have enabled them to be resolved.  

10.	I was concerned that the claimant’s solicitor had written the letter of 2 September 2008 to the tribunal without making contact with the respondent’s representative, not only because it was a discourtesy to the respondent’s representative and a breach of the tribunal’s rules but because it might have enabled the matter to be resolved without the need for this Pre Hearing Review.  However, I was also concerned that once the letter was copied to the respondent’s representative by the tribunal and this Pre Hearing Review arranged, the respondent’s representative took no steps to contact the claimant’s representative to try and resolve the matter.  I considered that this failure was unreasonable because it led to this Hearing having to proceed.  However, taking into account the conduct of the claimant’s solicitor, as set out above, I ordered the respondent to pay £150 and VAT towards the claimant’s costs in respect of this Pre Hearing Review.

11.	The further amended timetable is attached to this decision. 

 
 
______________________________________
E McBride
President

Date and place of hearing:   1 October 2008, Belfast

Date decision recorded in register and issued to parties:

Stephen Leonard McKeown –v- Bombardier Aerospace

Case Number 74/03

FURTHER AMENDED TIMETABLE OF STEPS LEADING TO HEARING OF CASE (CASE OF UNFAIR DISMISSAL WITH DISCRIMINATION ALLEGATION)

1.	By 17 October 2008 the respondent must set out details of its response to the facts and allegations contained in the claimant’s claim or his response or any other grounds for resistance.

2.	By 17 October 2008 any requests for discovery or additional information by the claimant or by the respondent must be submitted between the parties.  

3.	By 31 October 2008 both the claimant and respondent must have provided any request to discovery and/or additional information.

4.	By 31 October 2008 the claimant must provide full details of the compensation he is claiming against the respondent, which must include dates of all alternative employment obtained and of the gross and nett wages earned from any such alternative employment.

5.	By 14 November 2008 the claimant and any witness he intends to call must provide a witness statement to the respondent’s representative.

6.	By 28 November 2008 the respondent and any witness they wish to call must provide a witness statement to the claimant’s representative.

7.	If the claimant and 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 14 December 2008.

8.	By 19 December 2008 the claimant and respondent must agree a paginated bundle of documents containing a proper index.

9.	By 8 January 2009 the agreed bundle of documents is to be lodged with the Industrial Tribunals and Fair Employment Tribunal.

10.	The case shall remain listed from 12-30 January 2009.