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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Davies v Chief Constable of the Police ... Grafton Recruitment Limited [2013] NIIT 02192_12IT (04 April 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/2192_12IT.html Cite as: [2013] NIIT 2192_12IT, [2013] NIIT 02192_12IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2192/12
CLAIMANT: Carl Melvyn Davies
RESPONDENTS: 1. Chief Constable of the Police Service of
Northern Ireland
2. Grafton Recruitment Limited
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claim is not struck-out at this stage on the ground that it has not been actively pursued. It is listed for a pre-hearing review on the issue of disability.
Constitution of Tribunal:
Vice President (sitting alone): Mr N Kelly
Appearances:
The claimant appeared in person by way of telephone conference call in accordance with Rule 15 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
The first-named respondent was represented by Ms R Best, Barrister-at-Law, instructed by Crown Solicitor’s Office.
The second-named respondent was represented by Ms M McGinley, of Engineering Employers Federation Northern Ireland.
1. The claimant had been engaged in the Historical Enquiries Team and that engagement had come to an end. The claimant had lodged a claim of unfair dismissal against the first-named respondent and the second-named respondent had been added in the course of a Case Management Discussion.
2. The matter had previously been before two separate Case Management Discussions on 4 February 2013 and 4 March 2013. The claimant had not turned up for either and had not been represented. No satisfactory explanation had been furnished at the time.
3. The matter had been listed for a pre-hearing review to determine the following matters:-
“(1) Whether the claimant’s claim should be struck-out on the grounds that it had not been actively pursued, pursuant to Rule 18 of the Industrial Tribunals Rules of Procedure 2005 as set out in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
(2) If the claim is not struck-out, the tribunal will proceed to give such case-management directions/orders as may be necessary and appropriate to enable the claimant’s claim to be listed for a substantive hearing.”
4. The claimant explained that he had not received satisfactory notification of the first Case Management Discussion and that the tribunal had, on his version of events, not contacted him adequately in relation to the second Case Management Discussion. It seems remarkable that difficulties occurred twice in succession in the manner alleged by the claimant. However, I was reluctant to strike the claim out on the grounds that it had not been actively pursued, particularly where the claimant was not present to give sworn evidence. However, I made it clear to the claimant that he was on a ‘red card’ and that any further failure on his part to actively pursue the claim at any point hereafter could lead to the claim being struck-out without further notification to himself.
5. I then asked the claimant to clarify whether he was alleging that the second-named respondent was at any relevant stage his employer. He confirmed that he was not alleging that the second-named respondent had been, at any relevant stage, his employer. I explained that an unfair dismissal claim can only lie against an employer and he confirmed that he had no objection to the claim against the second-named respondent being struck-out at this stage. It was so struck-out.
6. The claimant was then asked to confirm whether he had been employed, at any relevant stage, with a contract of employment, by the first-named respondent. He stated that this had not been the case. He then confirmed that he had been employed, at the relevant stage, by CMD Inquiry Services Limited (‘CMD’). He confirmed that this was his company in laymen’s terms, ie he was a director of that company. There was some form of complicated relationship between the first-named respondent, intermediaries and CMD.
7. I explained again to the claimant that a claim of unfair dismissal can only properly lie against his legal employer. The matter listed, in the terms it was listed before me at that stage, did not enable me, without giving him prior notice, to strike-out the claim on the ground that it had no reasonable prospect of success.
8. However, I explained to the claimant that he was at risk of costs if he pursued a claim against a particular respondent which was misconceived and which had no reasonable prospect of success.
9. I listed the matter for a pre-hearing review at:-
10.00 am on 3 May 2013
That pre-hearing review will determine:-
“Whether the claim of unfair dismissal against the first, and remaining, respondent has no reasonable prospect of success and, if so, whether it should be struck-out.”
10. I explained, carefully, to the claimant that he could not simply leave it to 3 May 2013. If his conclusion was, after considering the matter and after having sought advice, that his claim against the first-named respondent had no reasonable prospect of success and should be struck-out, he should immediately notify the first-named respondent and the Office of the Tribunals that his claim was withdrawn.
Vice President:
Date and place of hearing: 28 March 2013, Belfast
Date decision recorded in register and issued to parties: