THE INDUSTRIAL TRIBUNALS

CASE REF:  57/12

CLAIMANT:			Aidan Hanna

RESPONDENT:		Positive Futures (a company limited by guarantee)

DECISION ON REVIEW
The tribunal’s decision is that:-
The tribunal, having refused, on review, the claimant’s application for relief from sanction for non-compliance with the tribunal’s Unless Order, dated 7 June 2012, confirmed the tribunal’s Decision, recorded in the register and issued to the parties on 25 June 2012, striking out the claimant’s claim. 

Constitution of Tribunal:
Chairman (sitting alone):	  Mr N Drennan QC

Appearances:
The claimant did not appear and was not represented.
The respondent was represented by Ms J Blair, Solicitor, of J Blair, Employment Law Solicitors.

Reasons

1.	The claimant, on 22 December 2011, presented a claim to the tribunal of unfair dismissal contrary to Article 126 and Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 (1996 Order), together with a claim that he had made protected disclosures, as defined by Article 67B of the 1996 Order, as amended, and as a result had been subjected to a detriment, as defined by Article 70B of the 1996 Order, as amended.  He also claimed that he had been dismissed as a result of having made a protected disclosure and sought relief in respect of same under Article 134A of the 1996 Order, as amended.  He also claimed that he had been subjected to a detriment and/or had been dismissed on grounds related to his trade union membership or activities and therefore sought relief in respect of same under Article 73 and Article 136 of the 1996 Order as amended.  The respondent presented a response to the tribunal on 7 February 2012, denying liability in respect of the claimant’s claims, as set out above.  When the claimant presented his claim to the tribunal, as set out above, he was legally represented.  By letter dated 17 February 2012, the parties were invited to a Case Management Discussion, which was held on 14 March 2012.  At the Case Management Discussion, at which both parties were represented by solicitors, the tribunal gave various detailed case management directions/orders, as set out in the record of proceedings dated 26 March 2012, to enable this claim to be heard from 1-12 October 2012.  As set out in the record of proceedings dated 26 March 2012, the tribunal ordered the claimant to reply to the respondent’s Notice for Additional Information and/or Discovery and Inspection, dated 28 February 2012 by 23 April 2012.

2.	At a Case Management Discussion held on 1 June 2012, as set out in the record of proceedings dated 7 June 2012, the claimant’s legal representative accepted that the said Notices had not yet been replied to by the claimant and he also acknowledged that, without the said replies, the respondent could not properly prepare for its defence of the claimant’s claim and, in the circumstances, if the failure continued, a fair trial would not therefore be possible.  The claimant’s representative further accepted that he could not resist the application by the respondent’s representative that the tribunal should make an Unless Order requiring the claimant to reply to the respondent’s said Notice for Additional Information and/or Discovery and Inspection and that, if he failed to do so, the claimant’s claim would be struck out.

	In light of the foregoing I therefore made an Unless Order requiring the claimant to reply to the respondent’s Notice for Additional Information and/or Discovery and Inspection.  It was agreed that the date for compliance with the said Unless Order would be 14 June 2012.  Although the claimant was not present at the hearing, the claimant’s representative assured the tribunal that he would impress on the claimant the consequences of any failure by him to comply with the said Unless Order.  By letter dated 8 June 2012, the tribunal sent to the representatives of both parties, but also the claimant, a copy of the record of proceedings for the Case Management Discussion held on 1 June 2012, dated 7 June 2012, together with a copy of the Unless Order dated 7 June 2012.  By letter dated 12 June 2012, the tribunal was informed by the claimant’s representatives that they no longer represented the claimant in the proceedings and provided a new address for service of the claimant.

3.	At a Case Management Discussion on 22 June 2012, as set out in the record of proceedings dated 22 June 2012, the tribunal recorded the following:-

“2.	By letter dated 15 June 2012, sent by e-mail at 9.34 on 15 June 2012, the tribunal was informed by the respondent’s representative that the claimant had not complied with the said ‘Unless Order’.  By letter dated 14 June 2012, but received by the tribunal, by post, on 15 June 2012, the claimant wrote to the tribunal in the following terms:-

“I wish to inform you that Donnelly & Kinder will no longer be representing me in my employment tribunal.

I will inform you as soon as possible with details of my new representative.  In the meantime I will take on this role myself.  

I wish to apply for 28 days’ sick leave due to stress and anxiety of the request by the respondent in my case to name the other parties to made [sic] public disclosure with me.  The request to name other parties involved in any trade union activity or meetings has also led to increased stress levels and anxiety.  It is extremely difficult to deal with possible consequences this will lead to for parties I name in their current employment.

I will complete the outstanding request for further information by the respondent by Friday 13th of July.

I can make available my GP notes and my current sickness to the panel if requested.  

I appreciate and anticipate your co-operation in this matter.”

Upon receipt of the above correspondence from the claimant and the respondent’s representative, the tribunal wrote to the claimant, with copy to the respondent’s representative, stating:-

“ … A Chairman has asked me to write to you to inform you that having regard to the terms of the overriding objective a Chairman has arranged a urgent Case Management Discussion for 9.30 am on 22nd of June 2012 to consider the way forward in light of the recent correspondence. 

If you wish to rely on any relevant medical evidence it should be lodged with the tribunal and copied to the respondent’s representative in advance of the hearing.

In view of the short notice telephone conference facilities can be offered and if any party wishes to use this they must provide a relevant landline telephone number … .”

The said letter, dated 20 June 2012, was sent on that date to the claimant by post and by e-mail.  The claimant did not reply to the said letter, nor did he contact the tribunal and he did not appear at this Case Management Discussion.  In addition, he did not provide to the tribunal any medical evidence, as referred to in his letter dated 14 June 2012.  

4.	At the Case Management Discussion on 22 June 2012, for the reasons set out in the record of proceedings dated 22 June 2012, I made, on the application of the respondent’s representative, a Decision striking out the claimant’s claim, pursuant to the terms of Rule 13(2) of the Industrial Tribunals Rules of Procedure, in accordance with the terms of the ‘Unless Order’, which had not been complied with by the claimant.  The said Decision was entered in the Register and issued to the parties on 25 June 2012.  However, having considered the terms of the claimant’s letter dated 14 June 2012, the terms of the overriding objective but also the decision of the Court of Appeal in the case of the Governing Body of St Alban’s Girls School and Another  v  Neary [2009] EWCA Civ 1190, and the decision of the Employment Appeal Tribunal in the case of Thind  v  Salvesen Logistics Ltd [2010] UKEAT/0847/09, I decided I should treat the claimant’s letter dated 14 June 2012, as an application for relief from the sanction of strike-out of the claimant’s claim, contained in the said Decision.  I therefore arranged a review hearing, pursuant to Rule 34 of the Industrial Tribunals Rules of Procedure 2005.  I am satisfied that, in a case involving non compliance of an Unless Order by a claimant that any application for relief from the sanction of striking out the claimant’s claim should be determined at a review hearing pursuant to Rule 34 of the Industrial Tribunals Rules of Procedure 2005 (see further, by way of contrast, EPEM Ltd –v- Huggins (2012) UKEAT 0019/12 – where it was held an application for relief from the sanction of striking out a response of a respondent for non compliance with an Unless Order requires to be determined under Rule 10(4) of the Industrial Tribunals Rules of Procedure 2005).

5.	As set out in the record of proceedings, dated 22 June 2012, I emphasised that at any such review hearing, a relevant consideration for the tribunal would be whether or not the claimant had, in the meantime, fully and properly complied with the said Notices for Additional Information and/or Discovery and Inspection.  In addition, I also made it clear, for the avoidance of any doubt, if the tribunal decided, at the review hearing, not to grant any relief from the sanction of striking-out the claimant’s claim, then the claimant’s claim would be at an end.  

6.	By letter dated 25 June 2012, the tribunal sent to the claimant, by post and also by e-mail, a copy of the record of proceedings of the Case Management Discussion on 22 June 2012, dated 22 June 2012, and a copy of the Decision striking out the claimant’s claim.  The letter also informed him that a review hearing had been arranged to consider his application for relief from the sanction of striking-out his claim, as set out in the said Decision, on 10 July 2012 at 11.30am.  On 26 June 2012, by e-mail, the claimant contacted the tribunal and was again informed by the tribunal, by e-mail on 26 June 2012, that the review hearing would be held on 10 July 2012 at 11.30am to consider his application for relief from the sanction of striking out his claim, as set out in the said Decision.  By a further e-mail dated 26 June 2012, the claimant replied stating “ok thank you.  I was not aware of any sanction to strike out the case.  Very confusing.  Thanks anyway for replying”.  

7.	At the review hearing on 10 July 2012, the claimant did not appear and was not represented.  He did not provide any explanation for his absence and he did not make any application for any postponement of the review hearing.  In the circumstances, I decided it was appropriate, having regard to the terms of the overriding objective, to proceed with the review hearing in his absence.  Ms Blair confirmed that the claimant had still not replied to the Notices.  I again reviewed the history of these proceedings, as set out above and had regard to the various factors referred to in Neary, in so far as appropriate.  I was further satisfied that the claimant had been provided with copies of all the relevant documents, including, in particular, the records of proceedings of the Case Management Discussions, as referred to above, but also the Unless Order and the Decision striking out the claimant’s claim.  He still has not replied to the said Notices or made any attempt to do so.  In this context, I again noted that the claimant’s representative, at the hearing on 1 June 2012, had acknowledged that, without replies to the said Notices, the respondent could not properly prepare for its defence of the claimant’s claim and, in the circumstances, if the failure continued, a fair trial would not therefore be possible and that he could not resist the tribunal making the Unless Order.  He had also assured the tribunal that he would impress on the claimant the consequences of failure to comply with the said Unless Order.  I also took into account, by reason of the failure of the claimant to reply to the said Notices, it has not been possible for the issues to be properly identified (see further ALM Medical Services –v- Bladon 2002 IRLR807); and further, by reason of the said failure by the claimant, the timetable for preparation and exchange of witness statements has not been able to be followed, I am no longer satisfied that the trial date of 1-12 October 2012 can still be met in the circumstances.  Despite what was set out in the record of proceedings dated 22 June 2012, the claimant has done nothing since that date to persuade me that relief from the sanction of striking out his claim for non compliance with the Unless Order should be granted on review.  Indeed, these replies have been outstanding since the beginning of March 2012 and were long overdue, even at the date when the Unless Order was made; and, since the date of the said Order, the claimant has taken no steps to provide the said replies.  If the claimant wished to persuade the tribunal to grant him relief from the said sanction, I consider the claimant would have made every effort to attend the hearing, which it is clear from the e-mail exchange on 26 June 2012 he was fully aware of.

8.	In light of the foregoing, and having regard to the terms of the overriding objective, I was not satisfied, in the interests of justice, that the claimant’s application for relief from sanction for non compliance with the tribunal’s Unless Order, dated 7 June 2012, should be granted.  I therefore confirmed, on review, the tribunal’s Decision, recorded in the register and issued to the parties on 25 June 2012, striking out the claimant’s claim.     

Chairman:

Date and place of hearing:  10 July 2012, Belfast		

Date decision recorded in register and issued to parties: