THE INDUSTRIAL TRIBUNALS

CASE REF:  319/16
479/16

CLAIMANT:			Graham Nigel Dawick 

RESPONDENT:		The Department of Agriculture & Rural Development

DECISION ON A PRE HEARING REVIEW
The decision of the tribunal is that both Pre Hearing Review issues are best dealt with at the full hearing of this matter.

Constitution of Tribunal:
Employment Judge (sitting alone):	Employment Judge Greene

Appearances:
The claimant appeared in person.
The respondent was represented by Mr A Sands, of counsel, instructed by the Departmental Solicitor’s Office.

Background

1.	Following Case Management Discussions on 1 September 2016 and 5 October 2016 an Employment Judge directed that a Pre-Hearing Review be convened to consider the following issues:

(i)	At one or more, or all, of the relevant times, was the claimant a “disabled person”, within the meaning of the Disability Discrimination Act, because of depression?

(ii)	in relation to each act complained of (each act or omission in respect of which compensation is claimed) is a tribunal deprived of jurisdiction to entertain a claim in respect of that act, because the proceedings were not brought within the relevant primary or secondary time-limit?  

2.	In considering these applications the tribunal was conscious of the various authorities in relation to Pre-Hearing Reviews and in particular the warning of the House of Lords in SCA Packaging Ltd –v- Boyle [2009] UKHL37 where the House of Lords warned that Pre-Hearing Reviews should only be ordered if there is a succinct knockout blow which is capable of being decided after only a relatively short hearing.  

3.	In preparation for this Pre-Hearing Review the respondent had prepared a bundle of 432 pages.

4.	In relation to the first Pre-Hearing Review issue there was not a medical report setting out the complaints, history, diagnosis and treatment of the claimant’s depression.  Some 145 pages of medical notes and records, including the claimant’s GP’s medical notes and records, were in the bundle.

5.	Despite being told by the Employment Judge at the previous two Case Management Discussions to prepare any documents that he wished to rely on the claimant had not obtained a medical report from a doctor commenting on his depression.  The claimant was keen that such should be available to the tribunal.  It was suggested to the tribunal that the reason why that had not been done was that the claimant’s wife’s father, who died on 28 September 2016, had been living with the claimant and his wife and was suffering from terminal cancer for some time.

6.	In addition the claimant received the bundle a couple of days before the hearing but had not been able, by reason of his own illness, to prepare the medical evidence so that he could take the tribunal, in detail, through all the medical notes and records where depression was a factor.  

7.	I consider that it would be beneficial to the tribunal if the extensive medical notes and records were examined by a medical practitioner who will be best placed to understand the entries and the medication prescribed and be able to advise a tribunal of the nature of the complaint, its seriousness, treatment and consequences.

8.	I am satisfied that the claimant should be afforded an opportunity to provide such evidence and that it would be better dealt with at the full hearing of this claim as the likelihood is the claimant would wish to refer to the specific events of which he complains as incidents of discrimination and as being factors in his ongoing depression.  

9.	Accordingly, I refer this Pre-Hearing Review issue to the full hearing and I direct that the claimant provide a medical report to the respondent in relation to his depression by 13 January 2017 or confirm in writing to the respondent by the same date that he does not wish to present any such medical report.  

10.	In relation to the second Pre-Hearing Review issue I also refer this to the tribunal hearing it.  Currently there are some 25 incidents which the respondent maintains are separate and individual incidents.  However, having read the incidents it would clearly be open to the claimant to allege that these represented an ongoing policy of discrimination and avail of the analysis in the Hendrix case, which if accepted would mean that there was not a time limit issue.  

11.	I consider that a tribunal hearing the full claim would be best placed to evaluate whether these are individual disparate incidents or whether they represent a policy or whether some of them represent a policy.  

12.	In addition in order that the tribunal would deal with the time limit issue it would be open to the claimant to take the tribunal through each individual incident, explain what happened and deal with the primary time period and the secondary time period in relation to each incident.  Such a course of action seems to fall foul of the warning given in the SCA Packaging Limited –v- Boyle, referred to above.  Accordingly I am persuaded that this Pre-Hearing Review issue also should be determined by the tribunal hearing the full claim.       

Employment Judge:

Date and place of hearing:  10 November 2016, Belfast		

Date decision recorded in register and issued to parties:

To:	Heather Boyd

From:	Employment Judge Greene	

CASE REF:  319/16
479/16

CLAIMANT:			Graham Nigel Dawick 

RESPONDENT:		The Department of Agriculture & Rural Development

1.	Please issue the decision to the parties as soon as possible.

2.	Please inform listing that these Pre-Hearing Review issues have been referred to the tribunal hearing the full claim.  

3.	The claim can now be listed for a Case Management Discussion to prepare it for hearing.

	November 2016