Adams v Kevin Connolly [2010] NIIT 7339

THE INDUSTRIAL TRIBUNALS

CASE REF: 7339/09

CLAIMANT : Ian Robert Adams

RESPONDENT: Kevin Connolly

DECISION ON A PRE-HEARING REVIEW

The decision of the Industrial Tribunal is that the respondent shall be permitted to amend his response in accordance with the amended response form dated 2 February 2010 and received at the Office of the Industrial Tribunals on the 4 February 2010.

Constitution of Tribunal:

Miss E McCaffrey (Chairman) sitting alone.

Appearances:

The claimant was represented by Mr Warke.

The respondent was represented by Mr Caher of Campbell & Caher Solicitors.

The Issue

1. The issue for the Industrial Tribunal to decide was whether the respondent’s application to amend the response as set out in the response dated 2 February 2010 should be accepted.

The Facts and the Law

2. The claimant lodged an application to the Industrial Tribunal on 2 November 2009 following his dismissal. There was correspondence between the claimant and the respondent in relation to a number of issues regarding his work and the ending of his employment. The respondent met the claimant to deal with a grievance in relation to 8 weeks pay in lieu of notice. He then wrote to the claimant in relation to his notice pay on 1 December 2009 and copied that letter to the Office of the Industrial Tribunals. As no other response was received at the Office of the Industrial Tribunals (OIT), the staff at the OIT wrote to both the respondent and the claimant advising that the respondent’s letter of

1 December 2009 would be treated as a response. This letter however only dealt with the issue of notice pay and not with the issue of the alleged unfair dismissal.

3. By letter dated 23 December 2009, Campbell Caher Solicitors wrote to the Office of the Industrial Tribunals seeking an extension of time within which to file a response on behalf of the respondent. At a Case Management Discussion subsequently, it was decided that the respondent should be entitled to deliver his draft response to the claimant and then if the claimant’s representative wished to make any objection, a hearing could be arranged to deal with the matter. A hearing of all the issues in the case had been scheduled for 3 March 2010. As the claimant’s representative objected to the response, that date was assigned for the hearing of this Pre-Hearing Review.

4. At the hearing Mr Warke on behalf of the claimant made a number of submissions, which can be summarised as follows:

(a) The claimant’s representative believed that accepting the proposed ET3 form in this case involved the respondent pleading facts which had not previously been pleaded, that this was in itself a new cause of action or response or at least a substantial alteration and was outwit the accepted amendments set out in Selkent Bus Company Ltd –v- Moore [1996] ICR 836 EAT. It was alleged the new facts pleaded would lengthen the hearing.

(b) The claimant disagreed with some of the content of the proposed amended form.

(c) The timing of the application to amend was inappropriate and it was alleged it was reasonably practicable for the respondent to have lodged an ET3 in time. The claimant alleged that if the respondent had applied for an extension of time earlier, this could have been granted and the form could have been lodged.

(d) The claimant argued the initial letter of 1 December 2009 was not an acceptable response and did not let the claimant know what case they were meeting. This had been raised by the claimant’s representative in correspondence with the tribunal office.

(e) The claimant alleged that he would be prejudiced by the delay in relation to this matter and there was a doubt as to whether his representative would be available to represent him at any future hearing. He also indicated that the new facts pleaded would lengthen the case. He further alleged that there was prejudice to him in that the late application for amendment meant an adjournment of the hearing scheduled for 3 March.

(f) The claimant’s representative pointed out that in the proposed response the respondent agreed that they had not completed the necessary statutory dismissal procedure. Accordingly, he alleged that the claimant’s dismissal was automatically unfair, that there was no reasonable prospect of success and so the amendment should not be accepted.

(g) Mr Caher for the respondent pointed out first of all that the case had not been scheduled for a full hearing on 3 March and that Mr Warke was well aware of this from the CMD record.

(h) Regarding the lack of proper response by the respondent, Mr Caher pointed out that a number of claims had been brought by the claimant against the respondent and that the respondent had been somewhat confused. Accordingly the letter of 1 December which he had lodged with the tribunal office was an inadequate response and this had been highlighted in correspondence by the claimant’s representative. By proceeding with the amendment, the respondent took the view that they were addressing the issues raised by the claimant, by setting out the grounds on which the respondent would defend the case. Mr Caher pointed out that the only delay in the matter had really been from the date of the Case Management Discussion on 2 February and this had occurred because the claimant’s representative would not accept the amended response.

(i) Mr Caher submitted that the question was whether the amendment would be fair and equitable in all the circumstances. He suggested that the grounds put forward by Mr Warke were vexatious and frivolous. He believed that there was no hardship to the claimant in having all matters identified and addressed.

Decision

5. The decision of the tribunal is that the response form filed by the respondent in relation to this matter will be accepted. I accept Mr Warke’s contention that some of the statements made in the ET3 form will be disputed by the claimant, but that is a matter to be dealt with by tribunal hearing the case in full. The overriding objective for the tribunal to follow is that all cases should be dealt with justly (Rule 3 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005). In dealing with cases justly, tribunals are to ensure, as far as possible, that parties are on an equal footing and that matters are dealt with in a way which are proportionate to the complexity or importance of the issues. Mr Warke took the view that allowing the amendment would cause extra expense and would be contrary to Rule 3 in that it would cause a delay and that therefore the case would not be dealt with “expeditiously and fairly.” However it is important that the case is dealt with justly for both parties. The respondent and the claimant should both know the case which they need to address at hearing and so it is beneficial if the case is set out by each party as fully as possible. If the respondent is allowed to set out the substance of its response, the claimant can then raise any requests for further information which it may require and request discovery of documents, if necessary.

6. I do not accept that there is any prejudice to the claimant in allowing this. The issue of amending the response was raised in correspondence only two weeks after the time for filing the response had lapsed. In my view this was not an excessive delay. As soon as the respondent had sought legal advice, the issue was raised by his lawyers promptly. The need for hearings to deal with this issue has caused a slight delay and it is to be hoped that the matter can now proceed. I do not accept Mr Warke’s comment that the full hearing date had to be vacated. He was aware from February that the hearing could not proceed on 3 March and I do not believe there is any prejudice to the claimant in this regard.

7. The parties agreed that they could deal with the issue of requests for further information and discovery between themselves and therefore I make no direction in this regard at this time. The claimant’s claim in relation to notice pay has been withdrawn. There are two claims outstanding, one in relation to unfair dismissal and the other in relation to written reasons for dismissal. The parties agreed that they would write to the tribunal office and request that these matters be listed together.

Chairman:

Place and date of hearing: 3 March 2010, Belfast.

Date decision registered in the register and issued to the parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Adams v Kevin Connolly [2010] NIIT 7339_09IT (19 May 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/7339_09IT.html Cite as: [2010] NIIT 7339_09IT, [2010] NIIT 7339_9IT

Industrial Tribunals Northern Ireland Decisions