McGuigan v D J Dickson Limited [2015] NIIT 1347

THE INDUSTRIAL TRIBUNALS

CASE REF: 1347/14

CLAIMANT: Laurence McGuigan

RESPONDENT: D J Dickson Limited

DECISION ON A PRE HEARING REVIEW

The claimant’s claim which contained complaints of unfair dismissal, breach of contract and breach of the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 is struck out because he failed to comply fully or materially with the Unless Order in relation to Additional Information and the Order for Discovery.

Constitution of Tribunal:

President (sitting alone): Miss E McBride

Appearances:

The claimant appeared in person.

The respondent was represented by Mr M Mason of Collective Business Services.

Reasons

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

(i) whether the claimant’s claim should be struck out for failing to comply with the tribunal’s Order for Discovery by the extended time limit of 4 November 2014; and

(ii) whether the claimant’s response to the Order for Additional Information which was sent to the respondent’s representative 55 minutes outside the time limit laid down in the Unless Order and which the President treated as an application for relief against the sanction of strike out should be granted.

The parties were notified by e-mail on 18 November 2014 that the claimant’s claim was struck out for failing to comply fully with the Unless Order and the Order for Discovery. That decision is now confirmed in writing and the detailed reasons for that decision are set out below.

The claimant’s claim

2. On 28 July 2014 the claimant, who was then represented by his former solicitor, presented a claim to the industrial tribunal which contained complaints of unfair dismissal, breach of contract and breach of the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 against the respondent. The claimant set out the details of those complaints at paragraph 7.4 of his claim form as follows:-

“1. I was, and remain, employed by McGuigan Construction. I was a direct employee since 1^st May 2008 but was specifically and solely responsible for the Mid Ulster & Causeway Aids and Adaptions Contract since its award to McGuigan Construction by the Northern Health and Social Care Trust (NHSCT) on the 2^nd April 2012.

2. Under this contract, I was responsible for overseeing all aspects of the Aids and Adaptions Contract including liaising with NHSCT staff, surveying sites, quality control, ensuring target dates are met, financial management, etc. I was not employed to do any other duties other than those connected with the Aids and Adaptions Contract during the 25 hours I was employed to work a week for a monthly salary of £2200.

3. The NHSCT Aids and Adaptions Contract was awarded to D J Dickson Limited with a commencement date of 1^st May 2014. I understand an employee from the NHSCT, Jonathan McMullan, advised D J Dickson Limited to contact McGuigan Construction with regard TUPE implications on the contract. Although McGuigan Construction was not contacted about this, they contacted D J Dickson on the 26^thMarch 2014 in order to discuss the transfer implications and to ease the transfer of me as part of an organised group of employees which has, as its principle purpose, the carrying out of activities under the contract awarded to D J Dickson. Further, my contract of employment was sent to D J Dickson on the 2^nd April 2014, which demonstrated this.

4. Following correspondence, D J Dickson wrote to McGuigan Construction on the 16^th April advising they believed the Service Provision (Change of Employment) Regulations (NI) 2006 are not applicable in this case and therefore my employment would not transfer. McGuigan Construction wrote to D J Dickson on the 16^thApril 2014 providing further relevant information including my disciplinary and grievance history and advising there was a relevant transfer and that my employment will therefore terminate with McGuigan Construction on the 30^th April 2014.

5. McGuigan Construction remain firmly of the view that the Service Provision Change (Protection of Employment) Regulations (NI) 2006 are applicable to my contract and there is a relevant transfer situation. I am part of an organised group of employees, which had, as its principle purpose, the carrying out of activities under the subject contract for the client. Further, I believe the relevant employee information required under the legislation was provided to D J Dickson Limited.”

The respondent’s response

3. On 30 August 2014 the respondent, which was and is still represented by Mr Mason of Collective Business Services, presented a response to the industrial tribunal in which it stated that it intended to resist the claimant’s complaints. The respondent set out the grounds on which it intended to resist the claimant’s complaints at paragraph 6.2 of its response form. In summary the respondent:-

(i) did not dispute that the Northern Health & Social Care Trust awarded the Aids and Adaptions Contract, which had previously been awarded to McGuigan Construction Ltd on 2 April 2012, to it with effect from 1 May 2014;

(ii) disputed that the claimant was an employee of McGuigan Construction Ltd and contended that the “issue of the Claimant’s employment was put forward by McGuigans in an attempt to retain the contract with Northern Trust as it hoped to dissuade the Respondent from taking on the contract by asserting that the Respondent would have to take the Claimant on as its employee”;

(iii) contended that the claimant was the Director and owner of McGuigan Construction Ltd notwithstanding that his wife is registered as the sole director and secretary of the company in the Companies Register and that, in practice, the claimant is responsible for the running of the company and is described as the Managing Director on the company website;

(iv) disputed, if the claimant was an employee of McGuigan Construction Ltd, that:-

(a) he was engaged for 25 hours per week as Aids and Adaptations Manager as that work would not have taken more than two to three hours per week;

(b) he was employed solely to carry out work on the Aids and Adaptations contract as he was personally involved in other contracts McGuigan Construction Ltd had throughout Northern Ireland;

(v) disputed the claimant’s complaint of unfair dismissal in light of the statement in his claim form that he was and remained employed by McGuigan Construction Ltd.

Background Facts

4. On 24 September 2014, Mr Mason, the respondent’s representative served Notices for Additional Information and Discovery on the claimant’s former solicitor.

The first Case Management Discussion – 30 September 2014

5. On 30 September 2014, a Case Management Discussion took place to ensure that the parties were ready for and to fix a date for hearing. The claimant was represented by his former solicitor and the respondent was represented by Mr Mason.

6. Among the Orders that were made at that Case Management Discussion on 30 September 2014, the claimant was ordered to respond to the respondent’s Notices for Discovery and Additional Information, dated 24 September 2014, by 14 October 2014 and the Hearing was listed for 19 November 2014. The claimant’s former solicitor did not object to any of the additional information or documentation sought by the respondent in the Notices or the making of the Orders.

7. In accordance with rule 10 of the Industrial Tribunal Rules of Procedure 2005, the record of proceedings which recorded the making of the Orders for Discovery and Additional Information set out the potential consequences of failing to comply with the tribunal’s Orders which included having the claim or response struck out.

8. By correspondence dated 16 October 2014 Mr Mason applied for Orders for Discovery against a number of non parties and by correspondence dated 23 October 2014, the claimant’s former Solicitor and Mr Mason were notified that a further Case Management Discussion would take place on 30 October 2014 to consider that application.

9. By correspondence of that same date i.e. 23 October 2014, which was received on 27 October 2014, the claimant’s former solicitor, wrote to the tribunal in the following terms:-

“We refer to the above matter and in relation to the Replies to Notices for Additional Information and Discovery which were due to be served by both parties by 14 October 2014. Sadly, our client has suffered a bereavement in his immediate family, and as a result he has been unable to attend with Counsel to consult and have Replies drafted.

In light of these circumstances we would respectfully seek an extension of the Order made at CND (sic) on 30 September 2014 to 4 November 2014 or a period deemed suitable by the tribunal to allow us time to consult with our client and draft Replies.

We can confirm we have complied with Rule 11 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (sic) and the representative for the respondent is on notice of this application.”

10. By e-mail dated 29 October 2014 the claimant’s former Solicitor and Mr Mason, the respondent’s representative, were notified that the claimant’s application for an extension of the time limit for compliance with the tribunal’s Orders for Additional Information and Discovery could be addressed at the Case Management Discussion on 30 October 2014.

The second Case Management Discussion – 30 October 2014

11. Neither the claimant nor his former Solicitor participated in that Case Management Discussion on 30 October 2014. Nevertheless, in light of the circumstances, outlined by the claimant’s former Solicitor in his letter of 23 October 2014, set out at paragraph 9 above, and in light of the respondent’s consent, the claimant’s application for an extension of time to comply with the tribunal’s Orders that he respond to the respondent’s Notices for Discovery and Additional Information was extended from 14 October 2014 to 4 November 2014 which was the date requested by the claimant’s former solicitor.

12. By correspondence dated 5 November 2014, Mr Mason, the respondent’s representative, notified the tribunal that the claimant had failed to comply with the tribunal’s Orders for Additional Information and Discovery despite the time limit having been extended to 4 November 2014.

13. By email dated 10 November 2014 the claimant’s former solicitor and Mr Mason, were notified that:-

“An Order was made by the President of the Tribunals at the case management discussion (CMD) on 30 September 2014 and the consequences of failing to comply with the Order were set out in the Notice at the end of the Record which was issued on 30 September 2014 to the representatives.

A CMD will take place either today at 4.00pm by teleconference or tomorrow at 9.30am by teleconference to consider whether a Strike Out Pre-Hearing Review can be arranged before the Hearing date of 19 November 2014, or, if not, whether the Strike Out issue should be dealt with at the start of the Hearing on 19 November 2014.

Please confirm availability by return.”

14. The claimant’s former solicitor and Mr Mason, the respondent’s representative, both notified the tribunal that a hearing at 9.30am on 11 November 2014 would suit them.

The third Case Management Discussion – 11 November 2014

15. The claimant was represented by Counsel, instructed by the claimant’s former solicitor, and the respondent was represented by Mr Mason at the Case Management Discussion on 11 November 2014. Counsel for the claimant confirmed that the claimant had still not complied with either the Order for Discovery or the Order for Additional Information.

The Order for Additional Information – Unless Order

16. In relation to the Order for Additional Information, Counsel for the claimant stated that the claimant had been aware of the original compliance date of 14 October 2014 as a consultation had been arranged with him prior to that date but had been cancelled due to the death of his mother. Counsel for the claimant also stated that she had consulted with the claimant on 6 November 2014, following which she had drafted replies to the Order for Additional Information. She agreed, on behalf of the claimant, that UNLESS the replies to the Order for Additional Information were provided to Mr Mason by 4.00pm on 12 November 2014 the claimant’s claim would be struck out without further notice, consideration or hearing. An Unless Order was therefore made in those precise terms at the Case Management Discussion on 11 November 2014 and was recorded in the record of proceedings which was issued to the claimant’s former solicitor and Mr Mason on 12 November 2014.

The Order for Discovery

17. In relation to the Order for Discovery, Counsel for the claimant stated that the claimant had been made aware that the documents required by the Order for Discovery should be provided but that she was not in a position to indicate when compliance would take place other than that it should be by the end of the week, if not sooner. On the assumption that the Unless Order in relation to the Order for Additional Information would be complied with by 12 November 2014 as ordered, the President directed that a Pre Hearing Review would take place on Monday 17 November 2014 at 10.00am in relation to the Order for Discovery, to determine whether the claimant’s claim should be struck out for failing to comply with the tribunal’s Order for Discovery by the extended time limit of 4 November 2014. A Notice of the Pre Hearing Review was also issued on 12 November 2014.

18. By e-mail dated 14 November 2014 at 12.44, Mr Mason, the respondent’s representative, notified the tribunal that although the Unless Order required the claimant to respond to the Order for Additional Information by 4.00pm on 12 November 2014, the replies were not sent until 16.55 on 12 November 2014. He therefore applied for the claimant’s claim to be struck out, pursuant to rule 13(2) of the Industrial Tribunal Rules of Procedure 2005, on the ground that the Unless Order had not been complied with.

19. By e-mail dated 14 November 2014 at 15.29, the claimant’s former solicitor and Mr Mason were informed that in light of the fact that replies to the Order for Additional Information had been provided in response to the Unless Order (albeit 55 minutes late), the President was treating the response as an application by the claimant for relief from the Unless Order sanction of strike out and that that application would also be considered at the Pre Hearing Review on 17 November 2014.

20 By e-mail dated 14 November 2014 at 15.45, the claimant’s former solicitor wrote to the tribunal as follows:-

“A Notice of the hearing confirming the directions was to be issued after the CMD on 11 November 2014. These directions issued by letter on 12 November 2014 and were received by post by our firm on the morning of 13 November 2014.

Finally we write to advise the tribunal that as of 12 November 2014 our firm ceased to represent the claimant in these proceedings. The claimant is aware of the listing of Pre-Hearing Review to take place on Monday 17 November 2014 at 10.00am.”

21. As set out at paragraph 1 of this decision the issues for determination at the Pre Hearing Review were:-

(i) whether the claimant’s claim should be struck out for failing to comply with the tribunal’s Order for Discovery by the extended time limit of 4 November 2014; and

The relevant statutory provisions

22. Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 provides:-

(1) The overriding objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals and chairmen to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable –

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

(d) saving expense.

(3) A tribunal or chairman shall seek to give effect to the overriding objective when it or he –

(a) exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2, 3, 4, 5 and 6; or

(b) interprets these Regulations or any rule in Schedules 1, 2, 3, 4, 5 and 6.

(4) The parties shall assist the tribunal or the chairman to further the overriding objective.

23. Rule 10 of Schedule 1 of those Regulations provides:-

(1) Subject to the following rules, the chairman may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit. Subject to the following rules, orders may be issued as a result of a chairman considering the papers before him in the absence of the parties, or at a hearing.

(2) Examples of orders which may be made under paragraph (1) are orders –

...

(b) that a party provide additional information;

...

(d) requiring any person in Northern Ireland to grant to a party such discovery or inspection (including the taking of copies) of documents as might be granted by a county court;

...

24. Rule 13 provides:-

(1) If a party does not comply with an order made under these Rules, under rule 7 of Schedule 4 or a practice direction, a chairman or tribunal –

(a) ...

(b) may (subject to paragraph (2) and rule 19) at a pre-hearing review or a hearing under rule 26 make an order to strike out the whole or part of the claim or, as the case may be, the response and, where appropriate, make a decision that a respondent be debarred from responding to the claim altogether.

(2) A decision or order may also provide that unless the decision or order is complied with the tribunal or chairman may make a decision striking out the claim or, as the case may be, the response on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a pre-hearing review or a hearing under rule 26.

(3) ...

25. Rule 18(7) provides:-

Subject to paragraph (6), a chairman or tribunal may make a decision or order –

...

(e) striking out a claim or response (or part of one) for non-compliance with an order or practice direction;

...

Paragraph (6) provides:-

Before a decision or order listed in paragraph (7) is made, notice must be given in accordance with rule 19. The decisions or orders listed in paragraph (7) may be made at a pre-hearing review or a hearing under rule 26 if one of the parties has so requested. If no such request has been made such decisions or orders may be made in the absence of the parties.

26. Rule 19(1) provides:-

Before a chairman or a tribunal makes a decision or order described in rule 18(7), except where the decision or order is one described in rule 13(2) or it is a temporary restricted reporting order made in accordance with rule 50, the Secretary shall send notice to the party against whom it is proposed that the decision or order should not be made. This paragraph shall not be taken to require the Secretary to send such notice to that party if the party has been given an opportunity to give reasons orally to the chairman or the tribunal as to why the order should not be made.

The legal principles

27. The Northern Ireland Court of Appeal made it clear in Magill –v- The Ulster Independent Clinic & Others (2010) NICA 33 that the:-

“Application of legal principles poses a duty on the Court to examine cases objectively without fear or favour to any party, represented or unrepresented. While Courts are conscious of the difficulties faced by a personal litigant representing herself and will strive to enable that person to present her case as well as they can, the dictates of objective fairness and justice preclude the Court from in any way distorting the rules or the requirements of due process because one party is unrepresented.”

28. The Court of Appeal also made it clear in Riley –v- The Crown Prosecution Service (2013) IRLR966 per Longmore LJ, at paragraph 27 of his judgment:-

“It is important to remember that the overriding objective in ordinary civil cases (and employment cases are in this respect ordinary civil cases) is to deal with cases justly and expeditiously without unreasonable expense. Article 6 of the ECHR emphasises that every litigant is entitled to "a fair trial within a reasonable time". That is an entitlement of both parties to litigation. It is also an entitlement of other litigants that they should not be compelled to wait for justice more than a reasonable time ...”

Breach of an Unless Order

29. The Court of Appeal made it clear in Marcan Shipping –v- Kefalas & Candida Corporation [2007] 1 WLR 1864 (per Moore–Bick LJ, giving the judgment of the Court of Appeal) in relation to Civil Procedure Rules, that:-

“...it should now be clearly recognised that the sanction embodied in an ‘unless’ order in traditional form takes effect without the need for any further order if the party to whom it is addressed fails to comply with it, in any material respect. This has a number of consequences, to three of which I think it is worth drawing particular attention. The first is that it is unnecessary, and indeed inappropriate, for a party who seeks to rely on non-compliance with an order of that kind to make an application to the court for a sanction to be imposed or, as the Judge put it, ‘activated’. The sanction prescribed by the order takes effect automatically as a result of the failure to comply with its terms. If an application to enter judgment is made under Rule 3. 5(5), the court’s function is limited to deciding what order should properly be made to reflect the sanction which has already taken effect. Unless the party in default has applied for relief, or the court itself decides for some exceptional reason that it should act of its own initiative, the question whether the sanction ought to apply does not arise. It must be assumed that at the time of making the order the court considered all the relevant factors and reached the decision that the sanction should take effect in the event of default. If it is thought that the court should not have made the order in those terms in the first place, the right course is to challenge on appeal, but it may often be better to make all reasonable steps to comply and seek relief in the event of default.”

30. In EB –v- BA 2008 UKEAT 0139/08, Elias J., then President of the EAT set out the above quotation from the Marcan Shipping case and confirmed that the same principles applied in industrial tribunals when an Unless Order has not been complied with. At paragraph 18 Elias J stated:-

“It is common ground that if the claimant was indeed in breach of the unless order then there was no discretion whether or not to strike out the claim. The strike out operated automatically upon breach of the order. This is made plain in the decision of Moore–Bick LJ giving the judgment of the Court of Appeal in Marcan Shipping –v- Kefalas & Candida Corporation [2007] 1 WLR 1864 in relation to the Civil Procedure Rules ...”.

Breach of Orders other than an Unless Order

31. In the case of Weir Valves –v- Armitage (2004) ICR 371 the Employment Appeal Tribunal held that the guiding consideration in deciding whether to strike out for non-compliance with an Order is the overriding objective which requires justice to be done between the parties. At paragraph 17 the EAT stated:-

“The Court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused or whether a fair hearing is still possible. It should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience.”

32. In Blockbuster Entertainment Ltd –v- James (2006) IRLR 630 the Court of Appeal held that:-

“The power of an employment tribunal under rule 18(7) to strike out a claim on the grounds that an applicant has conducted his side of the proceedings unreasonably is a draconic power, not to be too readily exercised. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these two conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. This requires a structured examination. The question is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take account of the fact, if it is a fact, that the tribunal is ready to try the claims, or that there is still time in which orderly preparation can be made.”

The Pre Hearing Review – 17 November 2014

33. As set out at paragraph 20 above, the claimant’s former solicitor ceased to represent the claimant as of 12 November 2014 and the claimant appeared as a litigant in person at this Pre Hearing Review on 17 November 2014. The respondent was still represented by Mr Mason.

The Unless Order

34. The President proceeded on the basis that as long as the claimant’s replies complied fully or materially with the Notice for Additional Information dated 24 September 2014 which was made an Order on 30 September 2014 and which became the subject of the Unless Order on 11 November 2014, the claimant’s claim would not be struck out because the replies had been provided 55 minutes late and this was made clear to the claimant and Mr Mason at the outset of this Pre Hearing Review.

35. Having considered:-

(i) the Notice for Additional Information which was made an Order of the tribunal on 30 September 2014 and became the subject of the Unless Order on 11 November 2014;

(ii) the replies to that Notice;

(iii) the claimant’s evidence, both direct and under cross-examination; and

(iv) the submissions of the claimant and Mr Mason;

the President was not satisfied that the replies complied fully or materially with the Order for Additional Information for the following reasons.

36. The Order for Additional Information required the claimant to provide additional information in relation to 10 paragraphs arising out of his claim form. The respondent took no issue with the replies to three of those 10 paragraphs, namely paragraphs 1, 6 and 7 which related to liability. The respondent’s issue was with the replies to the remaining seven paragraphs namely paragraphs 2-4 and 5 which related to liability and 8-10 which related to remedy.

37. Paragraph 2 of the Notice required the claimant to provide the following additional information arising out of his claim form:-

“Please specify the job role(s) occupied by the Claimant in McGuigan Construction Limited from 1^st May 2008 to April 2012”.

The claimant replied that:-

“From the incorporation of McGuigan Construction the Claimant was Managing Director up until April 2008. In April 2008 the Claimant stood down from his role as a Director and was employed by McGuigan Construction. In April 2012 the Claimant was contracted by McGuigan Construction specifically in relation to the Northern Trust’s Aids and Adaptations contract.”

This response completely failed to specify any job role occupied by the claimant in McGuigan Construction Limited from 1^st May 2008 to April 2012, notwithstanding that it was the claimant who contended, in his claim form, that he had been a direct employee of McGuigan Construction Limited since 1 May 2008 and that he was aware that the respondent disputed that contention.

38. Paragraph 3 of the Notice required the claimant to provide the following Additional Information arising out of his claim form:-

“Please specify in detail all the requirements and functions of the role that the Claimant undertook on behalf of McGuigan Construction Limited on the Northern Trust Aids & Adaptations contract.”

The claimant replied that his:-

“role encompassed a number of tasks including coping with the workload, processing the work, managing on site work, the organisation and servicing of materials, vans and tools, overseeing and complying with health and safety requirements, procuring diesel and organising relevant servicing, day to day liaising with clients and the Trust.”

It was clear from the use of the word “including” in the response that this reply did not specify in detail all the requirements and functions of the role undertaken by the claimant. It was also clear that the requirements and functions which were identified were identified in general terms only.

39. Paragraph 4 of the Notice required the claimant to provide the following Additional Information arising out of his claim form:-

“Please specify precisely the job role(s) undertaken by the Claimant for McGugian Construction Limited since 1^st May 2014”.

The claimant replied that he:-

“was engaged on a casual basis in freelance work by McGuigan Construction and others since 1^st May 2014 until his re-employment with McGuigan Construction in September 2014 as Contracts Manager on a full time basis.”

This reply failed to specify any of the job roles the claimant had undertaken.

40. Paragraph 5 of the Notice required the claimant to provide the following Additional Information arising out of his claim form:-

“Please specify the individuals involved in carrying out works on residents’ homes under the Northern Trust’s Aids & Adaptations contract from April 2012 to April 2014”.

The claimant replied that:-

“Four individuals were involved in carrying out the works on residents’ homes under the Northern Trust’s Aids & Adaptations contract, all of whom were sub Contract workers.”

Although it was clear from the claimant’s evidence that he was aware that this question required him to identify the four individuals, his response failed to do so. Although the claimant gave evidence that he did not believe that he could give such information without the consent of the individuals, he did not include that explanation in the response.

41. Paragraph 8 of the Notice required the claimant to provide the following Additional Information arising out of his claim form:-

“Please provide a full and detailed breakdown of all loss allegedly sustained by the claimant”.

Although the claimant replied that this information would:

“be provided with the Claimant’s witness statement;”

it was not.

42. Paragraph 9 of the Notice required the claimant to provide the following Additional Information arising out of his claim:-

“Please provide precise details of all employment carried out by the Claimant since 1^st May 2014”.

The claimant replied that he:-

“has been out of full-time employment from May 2014 until September 2014 when the Claimant secured full time employment. The Claimant was engaged in freelance work such as Health and Safety, attending site meetings, cost consulting and site managing etc”.

The claimant accepted during cross-examination that this reply did not provide details of the work he claims to have carried out for companies other than McGuigan Construction Ltd and that it was not included in his witness statement.

43. Paragraph 10 of the Notice required the claimant to provide the following Additional Information arising out of his claim form:-

“Please provide full particulars of the Claimant’s attempts to mitigate his loss”.

The claimant replied that he:-

“has secured a new, full time job with a salary equal to or more than he was receiving under his contract of employment with McGuigan Construction as the Aids and Adaptations Manager. In the intervening period, the Claimant made attempts to secure as much freelance work as possible.”

The claimant accepted under cross-examination that this reply did not provide the required information and that it was not included in his witness statement.

44. The claimant accepted towards the end of Mr Mason’s cross-examination of him, in relation to the above replies, that he had not complied with the Unless Order because, as the claimant stated, there were ‘massive holes’ in the replies. The President was not satisfied that the information provided in response to paragraphs 1, 6 and 7 remedied the deficiencies in the replies to the remaining seven paragraphs and was therefore satisfied that the claimant breached the Unless Order in material respects.

The Order for Discovery

45. The claimant e-mailed a number of documents to Mr Mason on the evening before this Pre Hearing Review. The President considered whether those documents complied fully or materially with the Order for Discovery and, if so, whether they remedied the deficiencies in the replies to the Order for Additional Information. If they had, the President would have considered treating that compliance, albeit late, as an exceptional reason for granting the claimant relief against the sanction of strike out for failing to comply with the Unless Order in relation to the Order for Additional Information. The Notice for Discovery, dated 24 September 2014, which was made an Order of the tribunal on 30 September 2014 required the claimant to provide 10 specific categories of documents. Having considered:-

(i) the Notice for Discovery;

(ii) the documents e-mailed by the claimant to Mr Mason;

(iii) the claimant’s evidence, both direct and under cross-examination; and

(iv) the submissions of the claimant and Mr Mason;

the President was not satisfied that the claimant had complied fully or materially with the Order for Discovery for the following reasons.

46. Paragraph 1 of the Notice required the claimant to provide discovery of:-

“All notes, minutes, memoranda, diary entries, records, correspondence, emails, text messages etc detailing any matters which are the subject of these proceedings”.

The claimant e-mailed the following documents to Mr Mason on the evening before the Pre Hearing Review:

(i) Company House records about McGuigan Construction Ltd;

(ii) his tax returns;

(iii) his P45;

(iv) his contract with McGuigan Construction Ltd dated 2 April 2012;

(v) the witness statement of Jody Carroll which had been provided by the respondent;

(vi) the witness statement from D J Dickson Ltd, the respondent;

(vii) job sheets for the five day period from 14 April to 18 April 2014 in respect of the Aids and Adaptations Contract which had lasted from 2 April 2012 to 30 April 2014.

The claimant accepted in evidence that these documents did not comply fully with paragraph 1 of the Notice because there were other documents including those which recorded appointments he had made with clients, which he considered to be relevant, and which had not been provided because he had not yet gone to take a look for them.

47. Paragraph 2 of the Notice required the claimant to provide discovery of:-

“All documents relating to the Claimant’s appointment to employment with McGuigan Construction Limited in May 2008”.

The claimant did not provide any documents in relation to this requirement. The claimant gave evidence that he had been Director of McGuigan Construction Ltd from 2007 to 2008. He then stepped down and became an employee. In relation to the provision of a 2008 contract of employment, the claimant’s evidence changed from:-

(i) that he had signed a contract of employment in 2008, but had not provided it because he did not consider it to be relevant; to

(ii) he had not received a contract of employment in 2008 because his employment was a ‘loose arrangement’ in 2008; to

(iii) he did not remember seeing a contract of employment for 2008; to

(iv) he was not sure if he had received a contract of employment in 2008.

48. Paragraph 3 of the Notice required the claimant to provide discovery of:-

“All documents relating to the Claimant’s change in role within McGuigan Construction Limited in April 2012, upon the company being awarded the Northern Trust Aids & Adaptations Contract”.

The claimant provided no documents in response to this requirement and gave evidence that that was because any such documentation belonged to McGuigan Construction Limited, not him. The President noted that the claimant did not appear to have any difficulty going to look for notes of appointments (see paragraph 46 above) which must also belong to McGuigan Construction Limited, but which he considered to be relevant to the case he was making.

49. Paragraph 4 of the Notice required the claimant to provide discovery of:-

“All documents upon which the Claimant intends to rely to prove he was part of an organised grouping of employees which had, as its principal purpose, servicing the Northern Trust’s Aida and Adaptations contract”.

Apart from a 2012 contract of employment, tax returns, his P45 and five days of job sheets out of a two year period, the claimant provided no other documents in response to this requirement.

50. Paragraph 5 of the Notice required the claimant to provide discovery of:-

“Job sheets completed and signed off on the Northern Trust Aids and Adaptations contract”.

In response the claimant provided job sheets for five days out of a two year period which he described as a sample.

51. Paragraph 6 of the Notice required the claimant to provide discovery of:-

“The Claimant’s job descriptions from before and after 1^st May 2014”.

No job descriptions were provided. Although the claimant gave evidence that no job descriptions existed that was not stated in response to the Order.

52. Paragraph 7 of the Notice required the claimant to provide discovery of:-

“All documents passing between the Claimant and McGuigan Construction Limited relating to the Claimant’s role with the company before and after 1^st May 2014”.

Apart from a 2012 contract of employment no other documents were provided. Although the claimant gave evidence at this hearing that that was because no other documents existed, he had not notified Mr Mason of that when providing the other documents on the evening before this hearing.

53. Paragraph 8 of the Notice required the claimant to provide discovery of:-

“The Claimant’s pay slips since 1^st May 2014”.

No pay slips were provided.

54. Paragraph 9 of the Notice required the claimant to provide discovery of:-

“All documents upon which the Claimant intends to rely to prove loss”.

No documents were provided.

55. Paragraph 10 of the Notice required the claimant to provide discovery of:-

“All documents upon which the Claimant intends to rely to prove he has taken steps to mitigate his loss”.

No documents were provided.

56. As set out above at paragraph 45 and for the reasons set out above at paragraphs 46-55, the President was not satisfied that the documents the claimant had e-mailed to Mr Mason on the evening before the Pre Hearing Review complied fully or materially with the Order for Discovery. Nor did they remedy the material deficiencies in the replies to the Order for Additional Information which was the subject of the Unless Order.

The claimant’s application for relief against the Unless Order sanction of strike out

57. As set out at paragraph 44 above, the claimant accepted and the President was satisfied that his replies to the Order for Additional Information did not comply with the Unless Order. The claimant applied for relief against the sanction of strike out, for having breached the Unless Order, at this Hearing for the following reasons:-

(i) the interests of justice and his right to a fair hearing under Article 6 of the European Convention on Human Rights;

(ii) he did not wish to be rushed to justice;

(iii) he had become a litigant in person on Friday 14 November 2014; and

(iv) the interests of saving costs.

The interests of justice and the claimant’s right to a fair Hearing under Article 6 of the European Convention on Human Rights

58. The claimant submitted that his case had been a “shambles” from the outset because he had been represented poorly by his former solicitor and Counsel. The claimant also submitted that in light of their poor representation and the personal pressures and emotions he had been under as a result of his mother’s illness and death on 7 October 2014, he would like to start off on a new footing and have a further month to comply with the Orders.

59. Mr Mason objected to the granting of the claimant’s application for relief against the Unless Order sanction of strike out for the following reasons:-

(i) the claimant had shown himself to be an unreliable and less than credible witness for the following reasons:

(a) his evidence at this Hearing that he had not seen the Notices or Orders was inconsistent with his former Counsel’s clear indication at the Case Management Discussion on 11 November 2015 that the claimant had been made aware of the Notices and the timetable for compliance;

(b) it was also inconsistent with the claimant’s acceptance at this Hearing that the matters his former solicitor had gone through with him in a telephone discussion seemed to be in accordance with the Notice for Additional Information;

(c) the fact that he sought to blame his non compliance with the Orders on poor representation by his former solicitor was inconsistent with his evidence that his former solicitor was not responsible;

(d) the inconsistencies in his evidence with regard to the existence of a 2008 contract of employment;

(ii) although the claimant had suffered a bereavement, he had been granted an extension of time to comply with the Orders and a further extension of the Order for Additional Information by way of the Unless Order. Notwithstanding that, the claimant not only failed to comply within the extended time limits but he failed to comply with the Orders.

60. Having considered the Notices and Replies, together with the evidence and submissions, the President agreed with Mr Mason that the claimant’s evidence and submissions lacked credibility for the reasons set out below:-

(i) the claimant gave four contradictory reasons for failing to provide discovery of his 2008 contract of employment;

(ii) the claimant gave two contradictory reasons for not being able to attend the full hearing on 19 November 2014 and a proposed reconvened hearing of the Pre Hearing Review on 18 November 2014. He initially gave evidence that he was going to London on the evening of 17 November 2014 for a week. He later stated that he was in another court case in Omagh on 18 November 2014;

(iii) his submission that his former solicitor and Counsel were to blame for his non compliance with the Orders was totally inconsistent with his evidence that he was responsible for the non compliance with the Orders because he may not have given his solicitor sufficient information;

(iv) his evidence that he had not been made aware of the Orders was not only inconsistent with his evidence in relation to his former solicitor going through what appeared to be the Notice for Additional Information with him on the telephone but it was also inconsistent with the unequivocal statement of his Counsel to the tribunal at the Case Management Discussion on 11 November 2014 that she had consulted with him on 6 November 2014 with regard to the Order for Additional Information and that following that consultation she had drafted replies and that the claimant’s former solicitor had made the claimant aware of what had to be provided by way of the Order for Discovery.

The President was not satisfied that the claimant had established that he had been represented poorly by his former solicitor and Counsel and was not therefore satisfied that he should be granted relief against the strike out sanction on that basis for failing to comply with the Unless Order.

61. While the President fully appreciated the personal pressures and emotions the claimant would have been under as a result of his mother’s illness and sad death, the President was satisfied, as set out at paragraph 9 above, that the claimant’s former solicitor sought an extension of the time limit for the claimant to comply with the Orders, in light of his bereavement, to 4 November 2014 and that that application was granted. The tribunal was also satisfied that the claimant had a consultation with Counsel on 6 November 2014 for the purpose of complying with the Orders and that no further application for an extension was sought until the claimant made that application at this Hearing. The President was not therefore satisfied that the claimant should be granted relief against the strike out sanction on this basis for failing to comply with the Unless Order.

The claimant did not wish to be rushed to justice

62. The claimant did not elaborate on this reason and the President was not satisfied that it amounted to a good or sufficient reason to grant the claimant relief against the strike out sanction for failing to comply with the Unless Order.

The claimant became a litigant in person on Friday 14 November 2014

63. Although the claimant became a litigant in person on 12 or 14 November 2014, it is clear from his evidence that he had the benefit of legal advice in relation to this case from April 2014, some three months before his claim was presented and that he had the benefit of that legal advice from his former solicitor until 12 or 14 November 2014 and that he also had the benefit of advice and representation from Counsel for at least part of that time. In light of those findings and the dicta of the Northern Ireland Court of Appeal in the Magill case, as set out at paragraph 27 above, the President was not satisfied that the fact that the claimant was now a litigant in person was a good or sufficient reason to grant him relief against the strike out sanction for failing to comply with the Unless Order.

The interests of saving costs

64. In relation to this ground the claimant explained in his closing submission that, unless the President granted him an extension of the time limit to comply with the Orders and postponed the Hearing, he would appeal the President’s decision to the Court of Appeal and the respondent and/or the claimant would have to pay the costs involved in such an appeal and that the granting of his application would therefore save costs. The President was not satisfied that this was a good reason to grant the claimant relief against the strike out sanction for failing to comply with the Unless Order.

Conclusion

65. The President was satisfied, for the reasons set out above, that the claimant had breached the Unless Order by failing to comply fully or materially with the Order for Additional Information, and that the documentation provided by him in response to the Order for Discovery not only failed to comply with that Order but failed to remedy the breach of the Unless Order and that in those circumstances it was not appropriate for the President to grant the claimant relief against the strike out of sanction on her own initiative. In relation to the claimant’s application for relief against the sanction of strike out for breaching the Unless Order, the President was not satisfied that the first reason put forward by the claimant in support of his application was established or that the other reasons put forward by the claimant amounted to good or sufficient reasons in the circumstances for granting such relief and refused the application. In those circumstances and in light of the decision of the Court of Appeal in the Marcan Shipping case and the Employment Appeal Tribunal in the EB –v- BA case as set out at paragraphs 29 and 30 above, the claimant’s claim which contained complaints of unfair dismissal, breach of contract and breach of the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 is struck out because he failed to comply fully or materially with the Unless Order in relation to Additional Information and the Order for Discovery.

______________________________________

E McBride CBE

President

Date and place of hearing: 17 November 2014, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGuigan v D J Dickson Limited [2015] NIIT 1347_14IT (04 March 2015) URL: http://www.bailii.org/nie/cases/NIIT/2015/1347_14IT.html Cite as: [2015] NIIT 1347_14IT

Industrial Tribunals Northern Ireland Decisions