ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE McMULLEN QC)
UKEATPA/1708/09/CEA, BAILII:  UKEAT 1708_09_1207
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE RIMER
| DONNA MARIE ARROWSMITH
|- and -
NOTTINGHAM TRENT UNIVERSITY
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Mr Akash Nawbatt (instructed by Pinsent Masons LLP) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Rimer:
The original employment tribunal decision
"4.13 Plainly, there are conflicts of evidence to resolve and therefore credibility of witnesses is relevant. We found Ms Holstein, Dr Albery and Professor Yazdani to be credible witnesses, their evidence was consistent under cross examination and questions from the Tribunal. Their evidence was also consistent with such documentary evidence as is relevant. On the other hand, Ms Arrowsmith's evidence was not always consistent. She maintained on the one hand that she did not wish Ms Holstein and Dr Albery to know of the pregnancy because she did not wish it to affect the interview, yet on the other hand she asserted in cross-examination that her pregnancy was common knowledge. She also initially asserted that she did not wish knowledge of her pregnancy to become common until the initial 12 week period during which miscarriage is much more likely had elapsed. At the very earliest, therefore, she would not wish to have the fact of pregnancy known until the very end of July 2008, at a time when both Ms Holstein and [Dr] Albery were on holiday.
4.14 On balance, we prefer the evidence of Ms Holstein and [Dr] Albery. We accept that they were not aware, nor did they have suspicions, that Ms Arrowsmith was pregnant at the time of the interview. Accordingly, the decision not to appoint Ms Arrowsmith cannot have been taken on the grounds of her pregnancy and therefore her claim must fail."
I comment that, in the reference in paragraph 4.13 to the "very end of July", I think it probable that the tribunal intended to refer to the "very end of August."
The employment tribunal's review of that decision
"40. When a costs or expenses order may be made
(2) A tribunal or Employment Judge shall consider making a costs order against a paying party where, in the opinion of the tribunal or Employment Judge (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or Employment Judge may make a costs order against the paying party if it or he considers it appropriate to do so.
(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.
41. The amount of a costs or expenses order
(1) The amount of a costs order against the paying party shall be determined in any of the following ways —
(a) the tribunal may specify the sum which the paying party must pay to the receiving party, provided that sum does not exceed £10,000 ….
(2) The tribunal or Employment Judge may have regard to the paying party's ability to pay when considering whether it or he shall make a costs order or how much that order should be. …"
"Where at the heart of a claim is an explicit lie alleging racial abuse, the employment tribunal was in error in failing to find that the claimant acted unreasonably in bringing or conducting her claim and should have made an order for costs against her."
"15. The EAT, as Mr Coley rightly points out, are not seeking to suggest that that head note is a rule of law to be followed in all circumstances, and that each case will depend on its own facts. The respondent relies upon paragraphs 40(2) and (3) of the 2004 Regulations and, in particular, submits that Ms Arrowsmith has behaved unreasonably in basing her claim upon a series of untruths. In particular, these matters are set out at paragraphs 4.8, 4.9 and 4.12 of the decision. As to the first matter, Ms Arrowsmith contended that she had had a discussion with Dr Albery prior to 26 July 2008 in relation to the selection of a dress which would conceal her 'bump'. Dr Albery denied that there was any such conversation and we accepted her evidence. In paragraph 4.9 Ms Arrowsmith contended that during June 2008 Ms Holstein asked her directly if she was pregnant. Ms Arrowsmith also contended that Ms Holstein made a number of jokes about pregnancy which were aimed at Ms Arrowsmith. Again Ms Holstein denies that any such conversations took place and asserted that the first she knew of the pregnancy was when she was told by Professor Yazdani on or about 2 September 2008. Again we preferred Ms Holstein's evidence. Professor Yazdani, as we have noted, confirms that he informed Ms Holstein of Ms Arrowsmith's pregnancy on or about that date and he further contended that on or around 14 August Ms Arrowsmith informed him that she was pregnant. Ms Arrowsmith, of course, denied that conversation but we preferred Professor Yazdani's evidence.
16. Based upon the above matters and the authority we have cited above, it seems to us that Ms Arrowsmith's conduct has been unreasonable within the meaning of the Regulations. Her core case has been that both Ms Holstein and Dr Albery were well aware of her pregnancy and she has made statements as set out above in support of that core contention. We found those statements to be untrue and therefore, it seems to us, it is open to us to make an award of costs. We recognise that we have a discretion to do so and in exercising that discretion we have taken into account the length of these proceedings and the costs to which the respondent has been put. In deciding not whether to make an award but as to the amount of the award, we have taken into account Ms Arrowsmith's means. She has recently ceased drawing statutory maternity benefit, is currently unemployed and is about to make application for further benefits such as she would be entitled to. In those circumstances it seems to us it would be pointless to make an award to have costs assessed because plainly those costs will well exceed £10,000. In those circumstances, doing the best we can, we think it would be appropriate to make an award of costs of £3,000 and we accordingly order the Claimant to pay that sum to the Respondent."
"15. In the application for costs, the tribunal directed itself in accordance with Daleside Nursing Home Ltd v Mrs Mathew UKEAT/5019/08/RN in the following terms: where at the heart of a claim is an explicit lie alleging racial abuse, the Tribunal errs in failing to find that the Claimant acted unreasonably in bringing or conducting the claim and should have made an order for costs. The Respondent alleged that that was what occurred in this case. The Tribunal accepted that the conduct had been unreasonable, as her allegations were untrue, and so acceded to the application made by the Respondent to have a costs order made against her. The Tribunal noted that the costs well exceeded £10,000, but decided appropriately to cap it at £3,000. The Claimant contends that no reasonable Tribunal would have made this order. …
"17. The central finding which is uncomfortable for the Claimant is that she did not tell the truth. That is a question of fact for Employment Tribunals. Parliament set them up in order to determine disputes such as this. The Claimant has been assiduous in asserting that she was truthful. She has caused complaints to be made to the Regional Employment Judge through the Office of Judicial Complaints; she has written to the present and former Prime Minister, the Ministry of Justice and the Home Secretary, all without any result in her favour."
"10. In our judgment that is a clear finding by the Tribunal that the allegation of explicit and offensive racial abuse was false, and that it had been made up some weeks later in a context whereby the making of the allegation was a method of deflecting attention from disciplinary matters which the Claimant was anticipating. It necessarily involves in our judgment a finding by the Tribunal that it was a deliberate, and, to an extent, cynical lie. It was that particular allegation, of course, which lay at the heart of the claim for direct race discrimination, as it was that allegation which, had it been accepted as true, would plainly have influenced the way in which the Tribunal looked at the other two incidents which were otherwise neutral."
"20. In our judgment, in a case such as this, where there is such a clear-cut finding that the central allegation of racial abuse was a lie, it is perverse for the Tribunal to fail to conclude that the making of such a false allegation at the heart of the claim does not constitute a person acting unreasonably. Whatever may be their genuine feelings about the other matters on which a complaint is made, on the particular facts of this case it was the fact that the lie was explicit and so much at the heart of the case that, in our judgment, it is appropriate for us to conclude that this was an overwhelming case where the Tribunal has failed properly to address the point, and as a result has come to a perverse conclusion."
"39. Thus a lie on its own will not necessarily be sufficient to found an award of costs. It will always be necessary for the tribunal to examine the context and to look at the nature, gravity and affect of the lie in determining the unreasonableness of the alleged conduct.
40. As this last case makes abundantly clear, no point of principle of general application is established in any of the cases being relied upon by Mr Beyzade [and they included Daleside]. In our judgment the Employment Tribunal's reasoning in the present case, at para 12 of their judgment, is unimpeachable. Where, in some cases, a central allegation is found to be a lie, that may support an application for costs, but it does not mean that, on every occasion that a claimant fails to establish a central plank of the claim, an award of costs must follow."
Lord Justice Richards:
Lord Justice Laws:
Order: Appeal dismissed