The claimant claimed unfair dismissal and disability discrimination. After failure to comply with numerous Orders of the tribunal, an ‘Unless Order’ was issued, with a warning that the claim could be struck out in the event of non-compliance.

The claimant’s solicitor later emailed the tribunal with notice that the claimant wished to withdraw the disability discrimination claim.  After sacking his solicitor, the claimant contacted the tribunal with some concerns and later advised that his disability discrimination claim had been withdrawn without his knowledge.

The tribunal had to decide whether the interests of justice required a review and setting aside of the decision to dismiss the disability claim. The claimant contended that the solicitor’s unilateral act was manifestly inexplicable and irrational, and he would consequently be prevented from having a fair opportunity to present his case.

The tribunal held that the solicitor’s representation had misled the tribunal and that, consequently, it was in the interests of justice to relist the claim.

Practical Lessons

The tribunal recognised that failings by representatives do “not generally constitute a ground for review.” However, it emphasised that this is not an absolute rule.

Further, the failings of the claimant’s representative in the present case occurred prior to hearing which meant that it was not an attempt to simply reargue the whole case again. If claimants do attempt to seek a case review, employers are more likely to successfully resist it if case preparation is at an advanced stage.

Also of interest was the respondent’s argument that the claimant’s proper redress lay elsewhere i.e. by suing his solicitor. The tribunal firmly rejected this contention and held that the availability of other remedies should have no bearing on applications to review a tribunal decision.

This case review was written by John Taggart BL. NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/