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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Faulkner v Officer Mess / Cleaning Pool [2010] NIIT 06645_09IT (09 March 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/06645_09IT.html Cite as: [2010] NIIT 06645_09IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 6645/09
CLAIMANT: Gaynor Faulkner
RESPONDENTS: Officer Mess / Cleaning Pool & Others
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant’s claim is struck-out.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Kinney
Appearances:
The claimant did not appear and was represented.
The respondents were represented by Mrs N Murnaghan, Barrister-at-Law, instructed by Crown Solicitor’s Office.
1. This hearing was arranged to consider the respondents’ application that the claimant’s claim be struck-out under Rule 18(7)(c) of the Industrial Tribunals Rules of Procedure 2005 on the basis that the manner in which proceedings have been conducted by the claimant are scandalous, unreasonable or vexatious, or alternatively, under Rule 18(7)(d) that the claim has not been actively pursued. The claimant presented a claim to the tribunal on 31 July 2009 claiming unfair dismissal, sex discrimination, sexual orientation discrimination and breach of contract. The claimant also claimed disability discrimination but this was rejected by the Office of the Tribunals. The respondents presented a response on 23 September 2009.
2. On 13 October 2009 the Office of the Tribunals wrote to the parties advising them that a Case Management Discussion would be arranged for 5 January 2010. The letter set out in considerable detail both the purpose of the Case Management Discussion and the steps that it was expected the parties would have taken before attending the Case Management Discussion. The letter also advised the parties that information could be sought from the Labour Relations Agency in relation to any of the matters set out in the letter.
3. The claimant did not attend the Case Management Discussion on 5 January 2010. It was not possible to make any progress on that occasion as Mrs Murnaghan submitted that it was unclear from the claimant’s claim form precisely what the issues in the case were and also who the correct respondents were. A further Case Management Discussion was arranged for 4 February 2010. Again the claimant was notified and again the claimant failed to attend. There has been no contact or communication from the claimant at any stage since the presenting of her claim.
4. On 4 February 2010, Mrs Murnaghan again attended and informed the tribunal that there has been no contact from the claimant as far as the respondents were concerned. Notices for Additional Information and Discovery and Inspection had been issued, but no response was at that stage received. On Mrs Murnaghan’s application the matter was then listed for a pre-hearing review to consider whether the claimant’s claim should be struck-out. The Record of Proceedings set out the basis for the pre-hearing review and also set out for the claimant the potential consequences of a failure to take action. It stated:-
“The hearing is an opportunity for the claimant to explain why her claim should not be struck-out. If the claim is struck-out then that will be the end of the claimant’s case. If the claimant does not attend this pre-hearing review or contact the tribunal in writing to give reasons as to why the claim should not be struck-out, this may be detrimental to her claims.”
5. The parties were notified of the pre-hearing review listed on 2 March 2010. The claimant has again failed to attend, has made no contact with the Office of the Tribunals, nor has she taken the opportunity to provide any explanation or reasons for her absence.
6. Mrs Murnaghan submitted that this was the third hearing at which the claimant had not attended, nor had she provided any reason or explanation for her absence. It was Mrs Murnaghan’s submissions that the claimant was wilfully neglecting to take reasonable steps to progress her claim in a manner which showed disrespect or contempt for the tribunal and/or its procedures. She referred, in particular, to comments made by Lady Smith in the case of Rolls Royce PLC v C Riddle [UKEAT/0044/07]. Mrs Murnaghan contended that those accused of forms of discrimination had a right to be heard expeditiously and there was a clear public interest in having issues determined at an early stage. The respondents were unable to identify, with any clarity, the precise issues in the case or indeed the appropriate respondents and Mrs Murnaghan contended a fair trial was not possible and strike-out was a proportionate response.
The law
7. Rule 18(7)(c) and (d) of the Industrial Tribunals Rules of Procedure 2005 provide:-
“(7) Subject to paragraph (6) a chairman or tribunal may make an order –
…
(c) striking-out any claim or response (or part of one) on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;
(d) striking-out a claim which has not been actively pursued.”
8. It is well recognised that the tribunal’s power to strike-out is a draconian power, not to be readily exercised. As Lord Justice Sedley commented in Blockbuster Entertainments Ltd v James [2006] IRLR 630:-
“Even where a fair trial is impossible, the tribunal must still consider whether the striking-out is a proportionate response in all the circumstances.”
I consider that in this case the claimant has initiated and presented a claim to the tribunal, starting a process which effects not just her but also the respondents and the tribunal itself and its resources. The claimant has failed to take any reasonable steps to progress her claim, nor has she provided any reason or explanation for such a failure. The claimant has had a number of opportunities to pursue her claim and has been clearly warned of the danger should she continue to ignore the tribunal process she has initiated. In these circumstances, I consider that it is appropriate to exercise my discretion to strike-out the claimant’s claim.
9. In the alternative, I consider that the claimant’s conduct of the case has been unreasonable in the way in which she has failed to attend at hearings, comply with Notices issued by the respondents, and has provided no explanation or reasons for not dealing with the progress of her claim. I consider that a fair trial is not possible. The respondents are unable to identify, with any precision or clarity, the basis of the claims that are made nor of the appropriate respondents in relation to each claim. I do not consider that a fair hearing is possible and I consider that strike-out is a proportionate response.
10. The claimant’s claim is therefore struck-out.
Chairman:
Date and place of hearing: 2 March 2010, Belfast
Date decision recorded in register and issued to parties:
