This was a continuation of an appeal against the striking out of claims of disability discrimination and protected disclosure (see Cafagna v ISS Mediclean & Ors . The EAT saw no error in the exercise of the Employment Judge’s discretion when he decided that the matter could not be tried fairly and that the claimant had not complied with the orders to enable his case properly to be progressed. Appeal dismissed.

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Appeal No. UKEAT/0308/10/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 November 2010

Before

HIS HONOUR JUDGE McMULLEN QC (SITTING ALONE)

MR G CAFAGNA (APPELLANT)

ISS MEDICLEAN & OTHERS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
Written Submissions

For the Respondent
Written Submissions

PRACTICE AND PROCEDURE – Striking-out/dismissal

The Employment Judge did not err in striking out the Claimant's claim under the DDA. See

UKEATPA/0414/09 & UKEATPA/0731/09 & UKEATPA/0033/09. Permission to appeal was refused by the Court of Appeal. Nor did he err in taking a similar approach to the slightly different facts in the PIDA claim.

1. This is to be treated as a continuation of the proceedings which I conducted on 18 March 2010. The outcome of the oral hearing, where the Claimant had raised an application under rule 3(10), was to adjourn it so that further comments could be received from the Employment Judge. What I say today must pay close attention to what I said on 18 March 2010 and is to be read with this, together with the further directions which I noted at paragraph 32 of the above judgment. See [UKEATPA/0414/09 & UKEATPA/0731/09 & UKEATPA/0033/09]().

1. My intention was to keep this matter within the Appellant-only zone of rule 3 and to use the Burns-Barke procedure to invite the Judge's comments on the President's points within his original rule 3(7) determination. For a range of reasons which I accept, that has not been possible, and out of fairness to the Claimant that he should not suffer further delay, I did what seemed to me to be appropriate which was to give this a full hearing.

1. The consequence is that written submissions are now exigible from the Respondent and I have them. The Claimant has provided no more material than was before me in the first place and mostly before the President. Nevertheless, this constitutes a full bilateral hearing. The Claimant, as is his wont, has not attended.

1. I have decided that the material provided by the Judge answers the concern expressed by the President and by me about the PIDA case. The Judge, on 28 June 2010, has written at length about the material which was available to him when he considered the strike out application. In my judgment, the material which he cites sufficiently demonstrates the matters which he took into account. Those were proper matters and I see no error in the exercise of his discretion in striking out the PIDA claim.

1. I already made a decision against the Claimant in the rule 3(10) hearing relating to all his other claims, and of particular relevance is the DDA claim. The Claimant sought permission to appeal to the Court of Appeal. That was refused on paper by Sir Richard Buxton. The Claimant sought a hearing. That was conducted in open court by Pill LJ as a renewed application. The Claimant did not turn up. An order was made dismissing the application and, I think, dealing with the point that it was out of time.

1. I have not yet seen a transcript of what Pill LJ said but the outcome was that my judgment was upheld. In other words, the decision of the President under rule 3(7) that the claim had no merit, and my decision on a much broader base that, apart from the PIDA claim, the claim had no merit, have been upheld conclusively.

1. What remains therefore is the PIDA claim. I accept in full the Respondent's written submissions. The difference in the material available to the Employment Judge as between the DDA and the PIDA claims has been explained by the Judge's reasons. It was open to him to decide that the matter could not be tried fairly and that the Claimant had not complied with the orders to enable his case properly to be progressed. I see no error in the exercise of his discretion. I have considered the issues raised in the authorities which I cited in paragraph 31 of my judgment and see no error by the Judge when considering his reasons against those standards.

1. The Claimant has failed at every stage in every case, apart from his brief reprieve on the rule 3(10) application which came before me. I also pay attention to a judgment of HHJ Peter Clark in 2008. It is now time to say that none of the Claimant's claims has any merit and this appeal has no merit. It is dismissed.