Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

 

CASE REF: 49/15FET

50/16FET

 

 

 

CLAIMANT: Heather Anne McMurray

 

 

RESPONDENT: 1. HM Revenue and Customs

2. Eilish Hanna

3. Jackie Herron

4. Karen Patterson

5. Lorna Ralph

6. Anne Holland

7. Chris Howarth

 

 

Certificate of Correction

 

 

 

 

Please note the following correction in the respondents to the decision issued on 4 April 2018:-

 

 

The second named respondent noted as Eilish Hanna should read Ailish Hanna .

 

 

 

 

 

Employment Judge:_______________________________________

 

 

Date: ___________________________________________________

 

 

 

 

 

 

FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS: 49/15FET

50/16FET

 

 

 

CLAIMANT: Heather Anne McMurray

 

 

RESPONDENTS: 1. HM Revenue and Customs

2. Eilish Hanna

3. Jackie Herron

4. Karen Patterson

5. Lorna Ralph

6. Anne Holland

7. Chris Howarth

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that it refuses the claimant's application to strike out the respondents' response pursuant to Regulation 17(7)(c) and (e) of the 2005 Rules of Procedure.

 

 

Constitution of Tribunal:

 

 

Employment Judge (sitting alone): Employment Judge Greene

 

 

Appearances:

 

The claimant appeared in person.

 

The respondents were represented by Mr Joe Kennedy, of counsel, instructed by the Crown Solicitor's Office.

 

 

1. Following representations by the claimant a Pre-Hearing Review was listed for
25 January 2018 to consider the following issue:-

 

"Whether the respondents' responses should be struck out by reason of the breaches of procedure and orders by the respondents and by reason of the respondents' alleged unreasonable conduct of this claim and their defence pursuant to Regulation 17(7)(c) and (e) of the 2005 Fair Employment Rules of Procedure".

2. On 25 January 2018 the Pre-Hearing Review was dealt with by submission only and by reference to the documents of record.

 

3. The claimant's claim was grounded on Regulation 17(7)(c) and (e) of the 2005 Fair Employment Rules of Procedure. Specifically the claimant was relying on unreasonable conduct by the respondents and the non-compliance with tribunal orders.

 

4. The claimant took the tribunal through the specific matters that she believed indicated that the respondents acted unreasonably or were in breach of tribunal orders.

 

5. Mr Kennedy, on behalf of the respondents, set out the respondents' response.

 

6. Having heard the submissions of the parties I gave an oral decision in which I answered the preliminary issue in the negative. I gave reasons for my decision in the course of an oral judgment.

 

7. The claimant then sought the reasons in writing.

 

REASONS

 

8. The reasons for my decision as delivered orally on 25 January 2018 are as follows:-

 

(1) The claimant brings this application to strike out the respondents' response pursuant to Regulation 17(7)(c) and (e) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005.

 

(2) In relation to her application under Regulation 17(7)(c) the claimant relies on the ground of unreasonableness alone. She also contends, pursuant to 17(7)(e) of the Regulations that the respondents have failed to comply with orders and directions made by me.

 

(3) As of 25 January 2018 all orders and directions made by me have been complied with except that the witness statements have not been provided to the claimant in their signed version, which of course the claimant was entitled to receive.

 

(4) In an email of 16 January 2018 the respondents' solicitor indicated that the unsigned witness statements, provided by the respondent to the claimant, would not be changed or amended. In those circumstances the omission of a signed statement is considerably reduced in its impact given the undertaking made by the respondents' solicitor. I am therefore satisfied that the delivery of the witness statements as ordered by me has been substantially complied with by the respondents.

 

(5) The respondents have not provided a medical report in relation to one of the named respondents, as directed by me, within the time prescribed. Mr Kennedy explained that there was a loss of the letter in the General Practitioner's practice. However I am satisfied that the delay in providing the medical report, which is available today, was outside the respondents' control. I am satisfied that the respondents sought to obtain the medical report as quickly as was reasonably practicable. Even though there has not been a compliance with the order, I am satisfied that this was due to circumstances beyond the control of the respondents.

 

(6) Another element about which the claimant complains is her inability to prepare her replying witness statements because she had not received signed copies of the respondents' witness statements and therefore feared that these may not be definitive documents. Despite that, she might well have construed the email of 16 January 2018 as reassuring her that that would not be the case. However, she was not so reassured perhaps, because of the history of this claim and she therefore has found herself unable to prepare her witness statements, which I can understand.

 

(7) Therefore, apart from the non-signing of the witness statements and the late medical report all my orders and directions have been substantially honoured by the respondents.

 

(8) The interpretation of Regulation 17(7) of the 2005 Rules of Procedure is governed by case law. I am also satisfied that Regulation 17(7)(c) and (e) are in substance the same as their equivalent in the English Rules of Procedure. In those circumstances the English authorities based on the English Rules, are clearly of persuasive authority to a tribunal in Northern Ireland. These issues have been considered by the EAT in a number of cases which include, HM Prison Service v Dolby [2003] IRLR 694; Hasan v Tesco Stores Limited UKEAT/0098/16; Block Buster Entertainment Limited v James [2006] EWCA Civ 684 and [2006] IRLR 630; and De Keyser v Wilson [2001] IRLR 324; and Bolch v Chipman [2004] IRLR 140.

 

(9) I am further satisfied that on basis of the above authorities, there is a four-stage approach when considering an application to strike out. Those stages are as follows:-

 

(1) there must be a conclusion by the tribunal not simply that a party has behaved unreasonably but that the proceedings have been conducted by or on his behalf in such a manner, and

 

(2) that even if the unreasonable conduct is found to exist the tribunal must then reach a conclusion as to whether a fair trial is still possible, and

 

(3) that, even if a fair trial is not considered possible, the tribunal must examine what remedy is appropriate and which is proportionate to its conclusion which may include a lesser penalty that a strike-out, and

 

(4) that even if the tribunal is minded to make a strike-out order it must consider the consequences of debarring a party from participating in a claim.

 

(10) I will consider the four stage approach.

 

Unreasonable conduct

 

(a) in considering unreasonable conduct I will disregard any dates missed by the respondents for complying with any of the orders or directions given by me if those dates were the subject of an extension of time within which to carry them out even if that extension of time was after the original time had expired. I do so because if a tribunal judge has permitted the extension then the assumption must be that it was reasonable to do so.

 

(b) there were other occasions when there was a dispute between the parties as to whether times had been missed or met. Those disputed matters had been frequently the subject of representations to the tribunal and on some occasions I amended the dates for carrying out the particular direction and other times I refused to do so. On some occasions the respondents' unwillingness to comply with how the claimant interpreted the direction given was vindicated by my subsequent amendments or by refusing to require them to give the documentation that the claimant was seeking. I therefore disregard those matters as contributing in any way to any alleged unreasonable conduct.

 

(c) I am also conscious that where there was a dispute between the parties as to whether dates had been honoured or not that these disputes were brought to the attention of the tribunal at Case Management Discussions. On those occasions I either refused to dismiss, if requested, or the parties agreed on an alternative way forward. These matters had been dealt with me in the past and therefore, in the absence of such new factor such as malice or deception, of which there was no evidence before me, there is no justification for rehearing this matters and I therefore disregard them also.

 

(d) However I think the respondents can be criticised for not keeping the claimant informed as to why there were difficulties in the course of this process and explaining why that was the situation. Had those steps been taken by the respondents, then it might have reassured the claimant and removed some of the acrimony that emerged in a number of the Case Management Discussions.

 

(e) I am further satisfied that Mr Currie, the respondents' solicitor, was under considerable pressure with this and other matters but that there was not any attempt by him to mislead the tribunal in how he dealt with these matters or to pervert the course of justice or not to comply with my orders and directions.

 

(f) So taking those matters into account, in the light of the submissions made by the parties to me today, I conclude that the respondents are not guilty of unreasonable conduct and therefore the claimant's application fails on that ground.

 

Fair trial

 

(11) Had I been persuaded that some of these actions did amount to unreasonable conduct I am definitely of the view that a fair trial is possible so the claimant would have failed on that ground.

 

(12) Furthermore, it is clear from the legal authorities, put before me, that it would be disproportionate to dismiss where there is an arguable defence and other steps can be taken to address the delays that have occurred, which I would have concluded applied in this review application had it been necessary to do so.

 

Debarring a party

 

(13) I do not need to comment on the consequences of debarring the respondent from participating in this claim for the reasons that have already been stated above.

 

Non-Compliance with Orders

 

(14) The second ground advanced by the claimant was that the respondents have been in breach of orders made by me or specifically they had not complied with orders made by me.

 

(15) I am not satisfied that the respondents have failed to comply with orders made by me.

 

(16) While at times there was delay in compliance that was subsequently approved by the tribunal by subsequent extensions of time.

 

(17) Whilst it might be argued that the failure to provide signed witness statements and the medical report, as directed by me, amounts to a breach of my orders I am satisfied that in the circumstances of this case the respondents' failure to do both was not significant for the reasons that I have previously given.

 

(18) Accordingly I dismiss the claimant's application for a strike-out pursuant to Regulation 17(7)(e) of the 2005 Rules of Procedure.

 

9. As stated above I do not attribute any fault to the claimant for not preparing her witness statements in the absence of signed witness statements from the respondents.

 

10. I direct therefore that the outstanding nine witness statements, in their signed form, should be served on the claimant by 9 February 2018. If the respondents cannot meet this direction I expect the claimant to be informed of that fact and the reasons for it by 8 February 2018 any application to the tribunal, seeking an extension of time to lodge the signed witness statements should be made to the tribunal with a copy of the extension application forwarded to the claimant.

 

11. The respondents' counsel indicated to the tribunal that the text in the witness statements will not be changed for amended. For the avoidance of any doubt I am not referring to any errors of names or dates or initials or typographical mistakes that may be corrected. Mr Kennedy assured the tribunal that the claimant could rely on the unsigned witness statements as a basis upon which she prepares her replying witness statements.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 25 January 2018, Belfast.

 

 

Date decision record ed in register and issued to parties: