THE INDUSTRIAL TRIBUNALS

CASE REF:	1739/17

CLAIMANT:			Thomas Cuthbert

RESPONDENT:	Tesco Stores Ltd

DECISION ON A REVIEW
The decision of the tribunal is that:-

The Tribunal, having refused, the claimant’s application that the decision of the tribunal, recorded in the Register and issued to the parties on 24 November 2017, required a review in the interests of justice, pursuant to Rule 34 of the Industrial Tribunals Rules of Procedure 2005, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, the tribunal confirms the said decision, striking-out the claimant’s claim.

Constitution of Tribunal:
Employment Judge (sitting alone):	Employment Judge Drennan QC
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Ms A Collins, Solicitor, of Jones Cassidy Brett, Solicitors.

Reasons

1.1	The claimant presented a claim to the tribunal on 22 March 2017 for direct disability discrimination and/or failure to comply with the duty to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995, as amended; and also a claim for unfair dismissal.  The respondent presented a response, denying liability for the claimant’s claim on 24 May 2017.

1.2	In accordance with the tribunal’s normal case-management procedures, the tribunal held a series of Case Management Discussions on 3 July 2017 and 7 September 2017, as set out in the Records of Proceedings, dated 4 July 2017 and 8 September 2017, at which various interlocutory orders were made by the tribunal to enable the issues to be identified and the substantive hearing to be listed in this matter.

1.3	Pursuant to the orders made at the Case Management Discussion on 3 July 2017, the respondent’s representative, on 17 July 2017, issued to the claimant Notices for Additional Information and/or Discovery relating to the claimant’s said claims of unfair dismissal and the claims pursuant to the Disability Discrimination Act 1995, as amended to the tribunal.  By the date of the Case Management Discussion on 7 September 2017, the claimant had not replied to the said Notices and it was agreed, and I so ordered, the claimant would reply to the said Notices by 21 September 2017.  

1.4	A further Case Management Discussion was held on 20 October 2017 as set out in the Record of Proceedings, dated 23 October 2017.  Due to the continuing failure of the claimant to reply to the said Notices but also to provide the medical evidence upon which he intended to rely, as previously ordered, for the reasons set out in the said record, I then made an ‘Unless Order’ against the claimant which stated:-

“TAKE NOTICE THAT UNLESS the claimant, by 3 November 2017, complies with the tribunal’s previous Orders requiring him to provide replies to the respondent’s Notices for Additional Information and/or Discovery and to provide all relevant medical evidence upon which he intends to rely, the tribunal may consider making a decision striking-out the claimant’s claims, without further consideration of the proceedings or the need to give notice under Rule 19 or to hold a pre-hearing review or a hearing under Rule 26, pursuant to Rule 13(2) contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.”

1.5	A further Case Management Discussion was held on 10 November 2017, as set out in the Record of Proceedings, dated 14 November 2017, following further correspondence from the respondent’s representative that the said ‘Unless Order’ had not been complied with by the claimant. 

	As set out in the said record, I stated:-

“1.	…  By e-mail dated 6 November 2017, the respondent’s representative informed the tribunal that the claimant had not replied to the said Notices and had not provided any medical evidence.  The claimant was fully aware of the terms of the ‘Unless Order’ and the consequences for his failure to comply with the said Order.  In a letter dated 7 November 2017, the claimant had written to the tribunal explaining the reason for his previous failure to attend the Case Management Discussion on 20 October 2017 but also that copies of the medical evidence were with the Equality Commission.  The claimant could provide no good reason why he had failed to reply to the respondent’s Notices for Additional Information and Discovery, both dated 17 July 2017.  Further, he could not explain why he had not gone to the Equality Commission to obtain copies of the medical evidence which he stated he had provided to them or returned to his doctor to obtain further copies of the medical evidence previously obtained.  

 2.	Following discussion, and not without considerable hesitation, it became clear that the claimant, who is a litigant-in-person, was seeking some relief from sanction and was anxious that his claim would still be heard by the tribunal.  Therefore, in the exercise of my discretion, I decided that it was appropriate, having regard to the terms of the overriding objective, and in the interests of justice, to give the claimant one further chance to comply with the said ‘Unless Order’.  I therefore extended the time for the claimant to comply with the said ‘Unless Order’ until 12.00 pm on 17 November 2017.  I emphasised to the claimant that if he continued to fail to comply with the tribunal’s said ‘Unless Order’, then his said claim to the tribunal is likely to be struck-out, as compliance is essential for a fair trial of the hearing and, in particular, for the respondent to be in a position to properly defend the claimant’s claim.”

	By e-mail dated 17 November 2017, following correspondence from the claimant, I directed that the time for compliance for the said ‘Unless Order’ should be extended to 5.00 pm on 17 November 2017, as requested by the claimant, without objection by the respondent’s representative.

1.6	Following application by the respondent’s representative, on 24 November 2017, pursuant to Rule 13(2) of the Rules of Procedure, I made a decision, recorded in the Register and issued to the parties, striking-out the claimant’s claim to the tribunal for failure to comply with the ‘Unless Order’ of the tribunal, dated 24 October 2017, as amended; insofar as it required him to provide replies to the respondent’s Notices for Additional Information and/or Discovery, dated 17 July 2017, by 17 November 2017.

2.1	By e-mail, dated 27 November 2017, the claimant wrote to the tribunal, stating:-

“I wish to appeal the decision based on the fact that I had submitted my medical information to Alison Collins who acts on behalf of Tesco and I was at the Office of the Tribunals with the relevant information requested of me I would also request that another judge hear my appeal.”

By e-mail dated 2 December 2017, the following reply was sent to the claimant, following my direction:-

“  …  Further to previous correspondence in the above matter and, in particular, your e-mail, dated 27th of November 2017, the Employment Judge, having regard to the terms of the overriding objective, has treated your e-mail as an application for review on the grounds that the interests of justice require such a review, pursuant to Rule 34(3) of the Industrial Tribunals Rules of Procedure 2005.  Having had a preliminary consideration of the application for review, he has directed that a review of the decision striking-out your claim, registered and issued to the parties on 24th of November 2017, be listed for hearing.  You will be informed of the date and time of the said review hearing in due course.  Pursuant to Rule 35(3) of the Rules of Procedure, the decision has to be reviewed by Employment Judge Drennan QC.”

	As a consequence, Notice of the review hearing dated 4 December 2017, was given to the parties for a review hearing to be held on 19 December 2017.  As set out above, the claimant appeared in person and was not represented.  At the outset of the hearing, I reminded the claimant, that, pursuant to Rule 36(1) of the Rules of Procedure of the industrial tribunals, I was required to conduct the said review hearing.

2.2	Insofar as relevant and material to this application for a review on the grounds that the interests of justice require such a review, the said decision, striking-out the claimant’s claim, having set out the above background matters, also stated:-

		“  …

6.	By an e-mail, dated 20 November 2017, the respondent’s representative informed the tribunal that the claimant, pursuant to the said ‘Unless Order’, had provided to her the medical evidence upon which he intended to rely; but he had not complied with the said ‘Unless Order’ insofar as it also required him, as set out above, to reply to the said Notices for Additional Information and Discovery, dated 17 July 2017, by the extended time for compliance with the ‘Unless Order’, namely 5.00 pm on 17 November 2017.  No further application for relief from sanction has been made by the claimant since the said extension of time was granted by me, as set out above.  

7.	I acknowledge that the claimant has complied with that part of the ‘Unless Order’, which related to the provision of relevant medical evidence upon which he intended to rely.  However, at the hearing on 10 November 2017, when granting him the said extension of time, I emphasised to the claimant the requirement to not only provide the said medical evidence but also replies to the said Notices for Additional Information and Discovery, dated 17 July 2017, and which remained outstanding and required to be replied to by him.  The claimant was made fully aware of the consequences of failing to comply with the said ‘Unless Order’.  By letter dated 15 November 2017, the claimant was sent a copy of the Record of Proceedings of the Case Management Discussion that had been held on 10 November 2017.  The said ‘Unless Order’, pursuant to Rule 13(2) of the Rules of Procedure, allows the tribunal, in the exercise of its discretion to strike-out the claimant’s claim without further consideration of the proceedings or the need to give notice to the claimant or hold any further hearing.

8.	Under Rule 13(2) of the Rules of Procedure, failure to comply with the said ‘Unless Order’ does not, unlike in Great Britain, result in an ‘automatic’ strike-out of the claimant’s claim.  I continue therefore to have a discretion whether to make a decision to strike-out a claimant’s claim for failure to comply with an ‘Unless Order’.  I do not underestimate that to strike-out a claim is a draconian remedy.  However, for the reasons set out above, I already have exercised my discretion to extend time for compliance with the said ‘Unless Order’, after explaining in detail to the claimant the necessity to fully comply with the said ‘Unless Order’ and not just that part that related to the provision of medical evidence.  There has to be a limit to the number of chances that can be given to a party who fails to comply with such an ‘Unless Order’.  I have taken into account, at all material times, that the claimant is a litigant-in-person.  However, the fact that he is a litigant-in-person cannot prevent a decision to strike-out a claim, where it is appropriate and necessary to do so and, in particular, where time has already been extended, with his agreement, to enable him to fully comply with the said ‘Unless Order’.  I continue to be satisfied that replies to the said Notices are required to be made by the claimant to enable the respondent’s representative to properly prepare and defend the claimant’s claim, which is a claim for unfair dismissal but also a claim for direct disability discrimination and/or failure to comply with the duty to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995, as amended, and replies to said Notices are an essential part of the respondent’s preparation of its defence to the claim so the respondent knows the case it has to meet; but also to enable the issues to be identified for determination by the tribunal at any substantive hearing.  By reason of the continuing failure of the claimant to reply to the said Notices, I am not satisfied that a fair trial is possible.  Having regard to the terms of the overriding objective, the interests of justice and the requirement for litigation to be conducted efficiently and, after taking into account the opportunities, as referred to above, that have already been given to the claimant to fully comply with the said ‘Unless Order’, I have decided it is appropriate, in the circumstances, to strike-out the claimant’s claim to the tribunal.”

2.3	The claimant, at the time of the review hearing still had not provided any replies to the respondent’s said Notices for Additional Information and/or Discovery, pursuant to the said ‘Unless Order’, despite what I had stated in the said Decision.  He gave no good or proper reason for this continuing failure to provide the said replies to the said Notices.  He sought, however, to make reference to and/or focus only on the alleged failure by the respondent’s representative to comply with an Order of the Tribunal in relation to discovery to the claimant of certain CCTV evidence.  I am satisfied that this had no relevance to his failure to provide any replies, the subject-matter of the ‘Unless Order’, or to excuse his continuing failure to provide the said replies.  It is correct, as set out in the Record of Proceedings, dated 14 November 2017, I had made the following Order:-

“7.	The claimant raised the issue of discovery of certain CCTV, copies of which I understand are on a memory stick.  There are certain confidential and data protection issues and it was agreed, and I so ordered, that the relevant CCTV evidence will be shown to the claimant at the offices of the respondent’s representative, on the giving by the claimant of proper and reasonable notice.  … .” 

Having heard the submissions by the respondent’s representative and the claimant, I am satisfied that there has not been any failure by the respondent’s representative to comply with the said Order made by me in relation to discovery of the CCTV evidence.  I am satisfied the claimant did arrive on 17 November 2017, but unannounced and without notice, to the offices of the respondent’s representative and provided to the respondent’s representative the medical evidence to be relied upon by him, as referred to previously.  He also sought, without having given the required notice to see the CCTV footage on foot of the Order.  As a consequence, it was not shown to him.  In an e-mail, dated 22 November 2017, the respondent’s representative wrote an explanation to the claimant:-

“You have not been given a copy of the CCTV footage but it has not been refused to you.  As the Judge explained, please confirm when it suits you to come here to view it so that I can make the necessary arrangements here.  I will need at least one day’s notice to organise this.  When you arrived here with your medical evidence last Friday, as you not made an appointment to view the footage that day, it was not shown to you.”

2.4	The claimant, at the review hearing, was only interested in referring to/focusing on the CCTV footage but not why he had not provided the said replies to the said Notices, the subject-matter of the ‘Unless Order’, which dealt with the many and varied issues, the subject-matter of the claimant’s claims of unfair dismissal and/or claims, pursuant to the Disability Discrimination Act 1995, as amended; and which I continue to be satisfied are required to be made by the claimant to enable the respondent’s representative to properly prepare and defend the claimant’s claim, as referred to in Paragraph 8 of the said Decision and to enable the issues of the claimant’s said claims to be properly identified.  

2.5	Despite granting the claimant the opportunity to make an application for a review of the decision, in the interests of justice, the claimant had still not addressed, by the date of the review hearing, his continuing failure to reply to the said Notices nor had be made any attempt to do so by the date of the said hearing.  The said Notices had been outstanding since 17 July 2017 and, despite numerous opportunities to do so, including the period between the date of the decision and the review hearing he had not done so or, indeed, made any attempt to do so.

3.1	Under Rule 13(2) of the Industrial Tribunals Rules of Procedure 2005, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, it is provided:-

“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.”

3.2	A similar Rule was to be found in Great Britain, pursuant to Rule 13(2) of the Employment Tribunals Rules of Procedure, contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, save that it was provided that, if the ‘Unless Order’ was not complied with, then the claim shall be struck-out on the date of non-compliance.  Therefore, in this jurisdiction, the tribunal has always had a discretion whether to strike-out a claim for non-compliance with an ‘Unless Order’.  In Great Britain, under the 2004 Rules, considerable case law grew up in relation to the ability of a tribunal to allow an application for relief from sanction of striking-out the claimant’s claim, and the circumstances in which the tribunal should do so.  (See further the decision of the Court of Appeal in the case of 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.)  In Neary the Court of Appeal departed from the earlier practice adopted by tribunals in considering the nine factors listed in the CPR Rule 3.9(1) and held that the prime consideration is the overriding objective and that whilst Employment Judges may find it useful to refer to the CPR factors they are not obliged to consider each factor separately.  It was held the approach of the Judge must be to determine the case rationally and not capriciously and consider relevant factors while excluding irrelevant ones.

In the Thind case Underhill P (as he then was), stated, at Paragraph 14, that the clarification brought about by the Court of Appeal in the Neary case was welcome as the law in this area had ‘become undesirably technical and involved’.  He also stated that:-

“The law as it now stands is much more straightforward.  The tribunal must decide whether it has the right, in the interests of justice and the overriding objective, to grant relief to the party in default notwithstanding the breach of the Unless Order.  That involves a broad assessment of what is in the interests of justice, the factors which may be material to that assessment will vary considerably according to the circumstances of the case and cannot be neatly categorised.  They will generally include, but may not be limited to, the reason for the default, and, in particular, whether it is deliberate; the seriousness of the default; the prejudice to the other party and whether a fair trial remains possible.  The fact that an Unless Order has been made which of course puts the party in question squarely on notice of the importance of complying with the Order and the consequences if he does not do so, will also be an important consideration.  Unless Orders are an important part of the tribunal’s procedural armoury (albeit one not to be used lightly), and they must be taken very seriously; their effectiveness will be determined if tribunals are too ready to set them aside.  But that is nevertheless no more than one consideration.  No one factor is necessary determinative a course which the tribunal should take.  Each case will depend on its own facts.”

	Further, at Paragraph 36 Underhill P went on to state:-

“I wish to close by emphasising, in case this judgment is referred to in other cases, that as I have already observed, all these cases turn on their own facts.  I certainly would not wish it to be thought that it would be usual for leave to be granted from the effect of an Unless Order.  Provided that the Order itself has been appropriately made, there is an important interest in Employment Tribunals enforcing compliance and it may well be just in such a case for a claim to be struck-out even though a fair trial would remain possible … .”

In light of the foregoing, I am satisfied that, in an application for a review on the grounds that the interests of justice requires such a review, on the grounds, relevant to such an application, are clearly similar to those considered relevant in considering whether there should be any relief from sanction, as referred to in Neary and Thind.

3.3	In Great Britain Rule 38 of the Employment Tribunals Rules of Procedure, as contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, have amended the previous Rules in relation to ‘Unless Orders’:-

		“Rule 38

(1)	An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order.  If a claim or response, or part of it, is dismissed on this basis the tribunal shall give written notice to the parties confirming what has occurred. 

(2)	A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so.  Unless the application includes a request for a hearing, the tribunal may determine it on the basis of written representations. 

… .”

An ‘Unless Order’, under Rule 38 of the 2013 Rules, is therefore a conditional judgment and there is no discretion to do other than confirm dismissal of a claim or response in the event of non-compliance (Scottish Ambulance Service  v  Laing [UKEATS/0038/12).  However the new Rules contain a new procedure for setting aside dismissal of a claim or response for breach of an ‘Unless Order’.  In particular, the ground on which the tribunal may set aside any dismissal is that it is in the interests of justice to do so.

The 2013 Rules do not apply in Northern Ireland but it is apparent, having regard to the decisions in Neary and Thind but also the express reference to ‘interests of justice’ in the 2013 Rules of Procedure, that, when considering any exercise of discretion in relation to this matter, that the case law, both under the previous Rules and now the 2013 Rules, continue to have relevance to any application for relief from sanction or, as in this case, an application for review on the grounds that the interests of justice require such a review.  

3.4	CPR Rule 33.9(1) has now been amended and the nine factors removed but as seen in Michael & Another  v  Middleton and Another [2013] EWHC 2881 and Tavataba Thevarajah and Others  v  Riordan & Others [9 August 2013] Unreported, it would seem the old 3.9 checklist, although removed, nevertheless represent matters that continue to be relevant in any overall assessment by a tribunal.  In a recent decision, under the Rule 38 of the 2013 Rules, the Employment Appeal Tribunal in the case of Singh  v  Singh [UKEAT/0158/16], Her Honour Judge Eady QC set out the relevant principles in relation to an application under Rule 38; but which has to be read subject to matters referred to above insofar as the 2013 Rules do not apply in Northern Ireland:-

“18	I have previously had to consider the approach the EAT should adopt when hearing appeals relating to ET decisions under Rule 38(2) in Morgan Motor Company Ltd  v  Morgan [UKEAT/0128/15].  The obvious starting point is to note that ET is bound to determine such applications on the basis of what it considers to be in the interests of justice.  The determination of that question necessarily requires that the ET exercises judgment, and it must do so rationally, not capriciously and reach its decision in accordance with the purpose of the relevant legislation, taking account of all relevant matters and avoiding irrelevant matters (Transport for London  v  O’Cathail [2013] ICR 614 and Governing Body of St Alban’s Girls’ School and Another  v Neary [2010] IRLR 124).  Provided the ET's decision meets these requirements, it is not for an appellant court to re-hear the case or, absent an error of law, interfere with the ET's exercise of judicial discretion in this regard (see Neary and Paragraph 2 of Harris  v  Academies Enterprise Trust & Others [2015] IRLR 208).

19	As to what ET has to take into account, that would depend on the particular circumstance of the case.  The fact that an Unless Order has been made would be one factor but is not determinative.  Indeed it cannot be said that any one factor will be necessary determinative of the course an ET should take (Thind  v  Salvesen Logistics Ltd).  What is required is a broad assessment of what is in the interests of justice in the particular case under consideration (Thind), will inevitably involve a balancing exercise on the part of the ET, as should be apparent from its recent judgment (see BBC  v  Roden [UKEAT/0385/14/DA] at Paragraph 39).”

3.5	As set out previously in the tribunal’s decision, at all times I was aware and took into account that the claimant is a litigant-in-person.  However, it is also necessary to consider the following dicta in this context.

As Girvan LJ said in Magill  v  Ulster Independent Clinic and Others [2010] NICA 33 (a personal injury case):-

“  …  a personal litigant cannot have an unfair advantage against represented parties by seeking to rely on inexperience or lack of proper appreciation of what the law requires.  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 requirements of due process because one party is unrepresented.”

	In Jones  v  Longley [2016] EWHC 1309, Master Matthews stated that:-

“Although at the margins a personal litigant may be offered a little more leeway than a party who is legally represented, there are no special rules for litigant-in-persons as compared with those litigants who are represented.”

The above case law was approved by Horner J in Smith and Hughes  v  Black and Persons Unknown [2016] NICH 16.

Girvan LJ in Peifer  v  Castlederg High School and Western Education & Library Board [2008] NICA 49, an Employment Tribunal case, stated:-

“When parties before the tribunal appear in person, without the benefit of legal representation, the lack of legal experience on the part of an unrepresented person may lead to the pursuit of irrelevancies and unnecessary proceedings.  Whilst tribunals must give some latitude to personal litigants who may be struggling in a complex field they must also be aware that the other parties will suffer from delay, incur increased costs, be exposed to unstructured and at times irrelevant cross-examination.  While we must have sympathy for a tribunal faced with such a situation the tribunal remains under the same duty to ensure that the overriding objective and Regulation 3 are pursued.”

4.1	Applying the above principles and guidance set out in the said Rules of Procedure and legal principles, as referred to in the previous paragraph of this decision, I have come to the conclusion, in the particular circumstances set out in the previous paragraphs of this decision, that the application for review by the claimant, on the grounds of the interests of justice require such a review, must be refused.  As set out previously, at all material times, I have taken into account that the claimant is a litigant-in-person.  However, prior to the making of the ‘Unless Order’ and subsequently, it has been explained to the claimant the necessity for him to fully comply with the terms of the said ‘Unless Order’.  It is correct he complied with that part of the ‘Unless Order’, relating to provision of medical evidence, which he wished to rely on, and which was properly acknowledged by the tribunal and the respondent’s representative; but, despite the granting of an extension of time to reply to the said Notices, he did not do so and, despite the making of the said ‘Unless Order’, the issuing of the decision to strike-out his said claim, with the reasons set out therein, and the granting of the application for review, he still had not complied with the said ‘Unless Order’, by replying to the said Notices, by the date of the review hearing.  He provided no good reason for not doing so.  His sole focus and reference at the review hearing was on the issue of the CCTV footage and not to the requirement for him to reply to the said Notices and his continuing failure for doing so.  The claimant, in this particular case, despite being reminded of the seriousness of his situation, the necessity for compliance and the consequences for his claim to the tribunal by not doing so, has failed to take up any of the numerous chances given by the tribunal for him to do so, as referred to above.  In such circumstances, having regard to the terms of the overriding objective, I do not consider that it is in the interests of justice to grant a review of the decision to strike-out the claimant’s claim and to thereby revoke, upon review, the said decision.  Therefore, the decision striking-out the claim against the respondent is confirmed.

Employment Judge: 

Date and place of hearing:	19 December 2017, Belfast

Date decision recorded in register and issued to parties: