Magill v Chief Constable of the Police ... [2010] NIIT 02937

THE INDUSTRIAL TRIBUNALS

CASE REF: 2937/03

CLAIMANT: Andrew Magill

RESPONDENT: Chief Constable of the

Police Service of Northern Ireland

DECISION ON A PRE HEARING REVIEW

The decision of the tribunal is that the decision (dated and issued to the parties on 5 June 2009), striking out the above claim because it had not been actively pursued by the claimant should stand and is not revoked.

Constitution of Tribunal:

President: Miss Eileen McBride

Appearances:

The claimant did not appear and was not represented.

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

The issue to be determined at this Pre Hearing Review was whether the decision striking out the claimant’s claim should be revoked.

1. On 23 June 2003 the claimant presented a claim alleging breaches of the Working Time Regulations (Northern Ireland) 1998.

2. On 14 August 2006 Orders for Discovery and Additional Information were issued to the claimant to be complied with by 11 September 2006.

3. On 6 March 2009 the claimant was notified that a Case Management Discussion had been arranged for 25 March 2009 to discuss the progress of his case. He was notified that if he did not attend the Case Management Discussion an application may be made to strike out his claim because it had not been actively pursued. He was also informed that if the tribunal considered that his claim had not been actively pursued, a Notice may be sent to him informing him that his claim would be struck out without further notice, unless he provided reasons within a specified period why his claim should not be struck out.

4. The claimant did not attend the Case Management Discussion which took place on 25 March 2009. Prior to the Case Management Discussion taking place, Mrs McKenna indicated that the Crown Solicitor had sent a letter to the claimant enclosing a copy of the decision in Diane Armstrong –v- Chief Constable of the Police Service of Northern Ireland in which it was explained that the effect of that decision (the lead case). was that a claim could only be brought for any breach of the Working Time Regulations within three months leading up to the claim, unless the tribunal considered that there were grounds for extending the time limit. Mrs McKenna indicated that the claimant had been invited to withdraw his claim if he accepted that there were no such breaches in the three months leading up to his claim.

5. The claimant did not withdraw his claim and in view of his non attendance at the Case Management Discussion and the fact that the respondent asserted that the tribunal did not have jurisdiction to consider his claim, Mrs McKenna made an application that a Notice informing the claimant that his claim would be struck out because it had not been actively pursued, should be sent to the claimant forthwith.

6. The Vice President was satisfied that the claimant had not actively pursued his claim and that a Notice should be sent to him informing him that unless he provided reasons why his claim should not be struck within 14 days of the Notice being sent his claim would be struck out without further notice.

7. A strike out notice and a copy of the record of proceedings explaining the matters referred to at paragraph 6 above were issued to the claimant on 2 April 2009.

8. On 5 June 2009 the claimant’s claim was struck out by the Vice President because it had not been actively pursued by the claimant and because the claimant had failed to give any reasons as to why such an Order should not be despite having been given the opportunity to do so by Order dated 2 April 2009.

9. On 10 July 2009 the decision dismissing the claim were returned to the Tribunal Office marked “no longer an employee”.

10. On 3 August 2009 a new address was provided for the claimant by the respondent and on 9 September 2009 a letter was issued to the claimant explaining the background to the dismissal decision and informing him that the Vice President had directed that a Pre Hearing Review be arranged to consider whether the decision striking out his claim should be revoked and that if it was revoked his claim would be reinstated and progressed accordingly.

11. By Notice dated 22 July 2010, the parties were informed that this Pre Hearing Review would take place on 14 September 2010.

12. The claimant did not attend the Hearing and Mrs McKenna confirmed that the most recent address provided was still the claimant’s address. In light of the history to the case, the claimant’s non attendance and the fact that the respondent was asserting that the claimant did not have breaches of the Working Time Regulations in the three month period leading up to the date of his claim being lodged, Mrs McKenna made an application for the original decision dismissing the claim on the ground that the claimant had failed to actively pursue it to stand.

13. In light of the circumstances outlined above I granted that application. In those circumstances the decision dated and issued on 5 June 2009 striking out the claimant’s claim because it had not been actively pursued, should stand and is not revoked.

______________________________________

E McBride

President

Date and place of hearing: 14 September 2010, Belfast

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Magill v Chief Constable of the Police ... [2010] NIIT 02937_03IT (16 September 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/02937_03IT.html Cite as: [2010] NIIT 02937_03IT, [2010] NIIT 2937_3IT

Industrial Tribunals Northern Ireland Decisions