Blain vs Robert G Sinclair & Company
THE INDUSTRIAL TRIBUNALS
CASE REF: 10710/19
CLAIMANT: Jacqui Blain
RESPONDENT: Robert G Sinclair & Company Solicitors
PRE-HEARING REVIEW DECISION
The decision of the tribunal is that the application to present a late response to these proceedings is hereby refused.
CONSTITUTION OF TRIBUNAL
Employment Judge (sitting alone): Employment Judge Ó Murray
The claimant was represented by Ms R Best, Barrister-at-Law, instructed by Ms Fitzgerald-Gunn of Worthingtons Solicitors.
The respondent firm was represented by Mr P McNeill, Solicitor of Robert G Sinclair & Company Solicitors.
1. This claim is a claim for discrimination and victimisation in relation to the outcome of the appeal against the claimant’s dismissal. The claims of discrimination are sex discrimination, disability discrimination and age discrimination. The claim form was presented on 13 June 2019.
2. The respondent’s application was for permission to present a late response to this the claimant’s third claim. By letter of 8 July 2019 the response form was served upon the respondent and the deadline for a response form to be lodged was clearly stated in that correspondence to be 5 August 2019.
3. During the Case Management process for the claimant’s two defended cases (case references 17012/18 and 6067/19) it was agreed by the parties that the undefended claim should travel with the claimant’s two other claims as it appears that the intention of the parties was that ultimately all three claims might be consolidated ie listed and heard together. No formal Order was ever made in that regard however.
4. The claimant’s three claims arise out of a factual matrix which related partly to her claims of discrimination and failure to provide equal pay in the period before her dismissal (the first claim) but also related to the disciplinary process and the dismissal decision which the claimant alleges were acts of discrimination, victimisation and amounted to unfair dismissal (the second claim). The third claim therefore could, on the facts, be an adjunct to the second claim in particular and might have been apt for consolidation with that claim. However this third claim contains a free-standing claim of victimisation as regards the appeal against dismissal and thus does not depend on the success or otherwise of either the second claim or the first claim.
5. The application for a late response was listed for the same date as an application for relief from sanction following two Unless Orders as, at all points it was evident (and indeed agreed by the parties) that there was a measure of overlap between the two applications. The factual reasons underpinning the application for a late response and the application for relief from sanction related primarily to the actions or inactions of Mr James Anderson, Barrister-at-Law and those of the respondent firm of solicitors.
6. In considering the application for a late response however I have specifically not taken account of the decision in the application for relief from the sanction contained in the Unless Orders. In other words that decision has had no bearing on my decision in this application as the currently undefended proceedings are freestanding and this application must be considered on its own merits.
7. In the Industrial Tribunals (Constitution and Rules of Procedures) Regulations Northern Ireland 2005, (as amended) (referred to as the Rules) are the Rules applicable to this application. The overriding objective is set out at Regulation 3 and provides that that objective is to deal with the cases justly. Regulation 3(2) provides as follows:
“3-(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;
(c) ensuring that it is dealt with expeditiously and fairly; and
(d) saving expense.”
8. The Rules in relation to responding a claim are set out at Rule 4 the relevant provisions of which state as follows:
“4(5B) If the application under paragraph (5) is presented to the Office of the Tribunals more than 28 days after the date on which the respondent was sent a copy of the claim, it must explain why the respondent did not comply with the time limit and be accompanied by a completed response which includes all the required information specified in paragraph (4).
(5C) The chairman shall only extend the time limit within which a response must be presented if he is satisfied that it is just and equitable to do so.”
9. The tribunal therefore has a discretion to extend the time limit for a response to be presented if the Employment Judge is satisfied that it is just and equitable to do so. The tribunal must balance all relevant factors and discount irrelevant factors in reaching a decision on whether to exercise its discretion.
10. The EAT decision of Kwik Safe Stores Limited v Swain and Others  ICR 49 remains the prevailing authority in relation to the exercise of that discretion, as regards a late response.
11. The importance of time limits is referred to in the following dicta of Mummery J:
“The Importance of time limits
We agree with the regional chairman that time limits are laid down as a matter of law, not by the tribunals themselves, and that “they are there for good reason because of the nature of industrial tribunal hearings.” This is an important factor in the exercise of the discretion to grant an extension of time under rule 15(1) of the Industrial Tribunals Rules of Procedure 1993. As Sir Thomas Bingham M.R. said in Costello v Somerset County Council  1 W.L.R. 256, 263:
“The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious despatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met.”
Those observations, made in the context of ordinary civil litigation, apply with even greater force in the case of the procedure in industrial tribunals, which were established to provide a quick, cheap and effective means of resolving employment disputes. Failure to comply with the rules causes inconvenience, results in delay and increases costs. It is also indicative of an unacceptable attitude on the part of the defaulter not only to the rights conferred and asserted, but also to the industrial tribunal system itself.” (paragraph 54)
12. Mummery J identified key elements relevant to the exercise of the discretion as follows:
(i) The explanation given by the respondent for failure to comply within the time limit. The following dictum from the decision is apposite in this case:
“In general, the more serious the delay, the more important it is for an applicant for an extension of time to provide a satisfactory explanation which is full, as well as honest.” (Paragraph 55)
(ii) The balance of prejudice. The following dictum refers to the exercise to be conducted by the Employment Judge:
“The process of exercising a discretion involves taking into account all relevant factors, weighing and balancing them one against the other and reaching a conclusion which is objectively justified on the grounds of reason and justice. An important part of exercising this discretion is to ask these questions: what prejudice will the applicant for an extension of time suffer if the extension is refused? What prejudice will the other party suffer if the extension is granted? If the likely prejudice to the applicant for an extension outweighs the likely prejudice to the other party, then that is a factor in favour of granting the extension of time, but is not always decisive.” (Paragraph 55)
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