THE INDUSTRIAL TRIBUNALS

CASE REF:	1613/07 IT

CLAIMANT:		Aqdas Nabili	

RESPONDENT:	Southern Health & Social Care Trust	

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that unless the claimant complies with the Order for Additional Information dated 27 April 2009 by 25 May 2009 her claim to the Industrial Tribunal shall be struck out for failure to comply with the Order without further consideration of the proceedings or the need to give any further notice or hold any hearing.  A further copy of the Notice for Additional Information is attached to this decision.

Constitution of Tribunal:
Chairman (sitting alone):		Mrs Ó Murray

Appearances:
The claimant appeared representing herself.
The respondent was represented by Miss C McClean of the Director of Legal Services Central Services Agency.

Reasons

1.	The issue to be determined at the Pre-hearing Review was whether the claimant’s claim should be struck out on the grounds of failure to comply with an Order for Additional Information dated 19 November 2008. 

2.	The claimant’s claim as set out in her claim form lodged on 29 August 2007 were for unpaid wages, failure to pay holiday pay, unpaid notice pay, failure to pay full travel allowance and failure to pay on-call payments.

3.	This claim has a long history most of which is set out in the pre-hearing review decision following a hearing on 19 November 2008.

4.	In summary the case has been listed on 3 occasions and has had to be adjourned for various reasons; this is the third pre-hearing review which has been listed in relation to a strike-out application and there has been numerous items of correspondence between the parties and the tribunal in relation to discovery and additional information requested by the respondent.

5.	At the hearing on 19 November an Order was made for the claimant to reply to a Notice for Additional Information a copy of which is attached hereto.  The additional information is required in answer to items 1-9 inclusive of the Notice for Additional Information.  Paragraph 4 of the Notice is hereby amended by consent to read as follows:   “Please specify precisely how and in what way the claimant is entitled to paid holiday leave”. 

6.	Following that hearing the claimant sent a bundle of documentation to the tribunal and this was forwarded to the respondent.

7.	A Pre-Hearing Review was scheduled for 25 March 2009 to deal with the strike-out application due to the claimant’s non-compliance with the Order for Additional Information.  The claimant sought a postponement of that PHR due to her personal circumstances which are set out in her letter of 23 March 2009.  The PHR was postponed at that stage due to a technicality in relation to the service of documents.  The claimant sent in a further letter of 23 March 2009 indicating her difficultly at attending hearings due to work commitments.

8.	The Tribunal re-list the PHR for today’s date.  A letter was sent on 31 March to both parties outlining the importance of responding to the Notice for Additional Information and stated the following;

“The claimant now has an additional opportunity to speedily provide the information mentioned in the last paragraph above, if she does so there will be no need for the strike out application to go ahead.”
  The claimant denied ever receiving the letter.

9.	The claimant’s explanation for not complying with the Order for Additional Information was that she understood that providing the documentation gave the answers to the questions listed.  It became apparent during today’s hearing that whilst this might have been true in relation to numbers 2-9 in the list, the claimant had clearly failed to give particulars of the breach of contract alleged in answer to question 1.

10.	The respondent’s application was for the claimant’s claim to be struck out or in the alternative for an Unless Order to be issued and further, there was an application for the costs of today’s hearing.

The Law

11.	Harvey on Industrial Relations and Employment Law specifies at Division T paragraph 393-396 the effects of non-compliance with an Order.  There are 3 options open to the tribunal;

(i)	the tribunal may make an Order for costs against the party in default under Rules 38-46; or

(ii)	the tribunal may order that the whole or part of the claimant be struck out under Rule 13(1)(b) and 18(7)(e);

(iii)	the tribunal may make an Unless Order namely an Order that stipulates that unless the terms are complied with the claim will be struck out on the date of non-compliance without further consideration of the proceedings under Rule 13(2).

12.	Harvey states as follows:

“The guiding consideration when deciding whether to strike out for non-compliance with an order is the overriding objective (Weir Valves and Controls (UK) Limited –v- Armitage 2004 ICR 371).  This requires the judge or tribunal to consider all the circumstances including 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 and, still, whether a full hearing is possible.  Whether is fair hearing is still possible is to be judged objectively by the judge or tribunal and the feeling of unfairness of one or other of the parties is not in itself a decisive factor.  The EAT made it clear in Armitage that strike out should not always be the result of disobedience to an Order and the Tribunal should consider whether a lesser sanction might be appropriate in the circumstances”.

Conclusions

13.	I am not satisfied that the claimant has made sufficient efforts to comply with the Order and regard it as disingenuous of her, an intelligent, highly-qualified individual to say that she assumed that the answers to the questions lay in the bundle of documents which was provided by her at a late stage.  Whilst this might have been true of numbers 2-9 in the list of the requests for additional information, the claimant clearly failed to particularise of the breach of contract alleged until this morning’s hearing.  Given the long history of this case this is completely unacceptable, has caused disruption to the respondent and has been unfair on the respondent.  It would not be fair to the respondent to expect it to pour through documents to glean details of the claimant’s case.  It is my conclusion therefore, that a fair trial would not be possible unless this information is provided in answer form, but having considered the matter I regard an immediate strike-out as a disproportionate response to the default.

14.	I therefore made an Unless Order in the following terms:  unless the claimant provides the additional information in response to the Notice for Additional Information attached to this decision in the form of a letter (as agreed by the claimant at today’s hearing) by the 25 May 2009, her claim will be struck out for failure to comply with the Order without further consideration of the proceedings or the need to give any further notice or hold any further hearing.

15.	The claimant requested that she be given until the end of August to comply with the Unless Order given several matters that she has to deal with in her personal life.  Having considered what the claimant has said I am satisfied that 28 days would be sufficient time for her to provide the information as the claimant stated at today’s hearing that the information is all to hand and easily available for her to respond to the Notice for Additional Information.

16.	The respondent applied for costs for today’s hearing and having considered the representations of Miss McClean I am not satisfied that this is a case where costs should be awarded particularly in view of the fact that costs are the exception rather than the rule in the tribunal.  In addition, the only mention of costs as a possibility was made in the letter which the claimant says she did not receive.

17.	On the assumption the the claimant will comply with the Unless Order, the parties agreed that the case could be listed for 5 days beginning 24 August 2009 and I therefore order that the case be so listed.

Chairman:

Date and place of hearing:		27 April 2009, Belfast

Date decision recorded in register and issued to parties:

IN THE MATTER OF AN APPLICATION TO THE INDUSTRIAL TRIBUNAL 
                                                                 AND 
                                         FAIR EMPLOYMENT TRIBUNAL               N 2
BETWEEN :
                                                   AQDAS NABILI 
                                                                                                                              Claimant 
                                                             AND 
                      SOUTHERN HEALTH AND SOCIAL SERVICES TRUST 
                                                                                                                         Respondent 
                                              CASE REF NO 1613/07
                  NOTICE FOR ADDITIONAL INFORMATION 
TAKE NOTICE that you are hereby required to furnish to the Respondent’s representative within 7 days of service of this Notice upon you the following Additional Information arising out of this Application to the Industrial Tribunal :-
1.	Please provide precise details of how and in what way it is alleged that the 
Respondent has breached the Claimant’s Contract of Employment.
2.	Please provide a precise breakdown of the amount that is being claimed for unpaid wages.
3.	Please specify the periods claimed for unpaid wages.
4.	Please specify precisely how and in what way the Claimant is entitled to unpaid holiday leave.
5.	Specify the precise amount of leave claimed and over what period.
6.	Specify precisely the amount of unpaid travel expenses claimed.
7.	Please clarify how and in what way the claim for unpaid travel expenses arises.
8.	Specify precisely the amount claimed by virtue of the non-payment of on-call payments.
9.	Clarify precisely over what periods the amounts claimed in Paragraph 8 above are claimed.
10.	Confirm the identity of any witnesses the Claimant proposes to call in support of her complaint before the Tribunal.

AND FURTHER TAKE NOTICE that if the Claimant fails to provide the aforesaid Additional Information within 7 days of the date of this Notice an immediate application will be made to the Industrial Tribunal and Fair Employment Tribunal for an Order 

staying the proceedings pending the delivery of the same and, upon the Hearing of such an application, use will be made of this Notice for the purpose of fixing you with the cost of any incidentals thereto.
 
Dated this 30th day of January 2008 

Signed; _______________________
A Maginness Esq 
Director of Legal Services 
Central Services Agency 
2 Franklin Street 
BELFAST BT28DQ 
Solicitor for the Defendant 
TO:	the Claimant 
Dr Aqdas Nabili 
47 Greystead Road 
LONDON 
SF23 3SE