FAIR EMPLOYMENT TRIBUNAL

CASE REF:    214/03 FET

CLAIMANT:                  Paul Girvan

RESPONDENT:	    The Queen’s University of Belfast

DECISION

This is a decision of a chairman sitting alone in accordance with Rule 13 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005.  The decision of the Tribunal is that the claimant is ordered to pay costs of £200 to the respondent.

Constitution of Tribunal:

Chairman:          Mrs M Watson

Appearances:
 
The claimant was represented by Mr J Bowers, EIRS, Belfast Unemployed Resource Centre.
 
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Ms R. Carson, Legal Services Officer, Queen’s University Belfast.

BACKGROUND TO APPLICATION

1.	The claimant has lodged six claims of unlawful religious /political discrimination    arising from his unsuccessful efforts to secure employment as a lecturer with the respondent. Of these, four relate to posts within the Film Studies Department and the other two relate to Political Science.  On each occasion the claimant was not short-listed.

2. 	       By letter dated 17 November 2003, the Vice President informed the parties that the cases would be listed in chronological order.

3. 	On 1 February 2005, a Case Management Conference was held. This noted that the cases were not suitable for consolidation.  The respondent requested that the instant case, Ref. No. 214/03 FET be listed first and indicated that if the claimant was unsuccessful and persisted with the other claims and was unsuccessful in those, costs would be sought against him. Mr Bowers, for the claimant, indicated he was “content” for Case Ref 214/03 FET to be heard first. The issues for the tribunal, dates for exchange of witness statements and for the hearing, were directed.

4.	Unlike Mr Bowers, the claimant was not content with these directions and he wrote next day to the tribunal office. This was followed by a letter from Mr Bowers dated 4 March 2005 stating that the claimant -

(i)	believed he was the victim of a ‘ pattern of discrimination’ by the respondent,

(ii)	did not contend that those short-listed in this case were less qualified than he, and

(iii)	relied on the fact that other candidates not short-listed in this case were subsequently successful in recruitments for the Film Studies Department in exercises where the claimant, again, was not short-listed.  These candidates were identified by the claimant as his ‘comparators’.

5.	As a consequence of these letters, a further Case Management hearing took place on 12 April 2005. The chairman found that the claimant had been attempting to reopen the subject of the directions made at the previous hearing. Costs of £75 were awarded against him for this unreasonable action.

6. 	Mr Bowers informed me that at the hearing of 12 April 2005 he asked whether the claimant was barred from referring to comparators in the witness statement and was told that the matter of comparators would be decided by the tribunal hearing the case. 

7. 	The claimant’s witness statement received by the respondent contained references to subsequent recruitment exercises which are the subject matters of other claims of the claimant. The respondent sought to have these references deleted on the grounds that their inclusion had no reference to Case Ref. 214/03 FET and had the potential to prejudice the respondent’s defence. 

8. 	A further Case Management hearing took place on 24 August 2005 which directed that the inclusion of the disputed material in the claimant’s witness statement was a further attempt to circumvent the tribunal’s previous directions and would substantially prejudice the respondent’s defence. An amended witness statement was directed forthwith but instead, the claimant withdrew his case. The respondent did not object to the withdrawal but applied for costs against the claimant as per the attached Schedule.

9.	This case falls to be decided under the provisions of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2004. Under Rule 12 (1) a tribunal shall consider making an order for costs where it is satisfied that the claimant has acted “…vexatiously, abusively, disruptively or otherwise unreasonably” or that the proceedings have been ” misconceived”.

10. 	The respondent submitted that the claimant has acted unreasonably by persistently failing to reconsider the merits of his case despite having had its evidential deficiencies pointed out on several occasions. If his other claims proceed to hearing and are unsuccessful, further applications for costs will be made.

11.		On behalf of the claimant, Mr Bowers maintained that the claimant and he had not realised they could not refer to subsequent claims for comparison purposes until the hearing of 24 August 2005 following which the claim had been withdrawn.

12. 		In arriving at my decision in this case, I have

		(a)     formed an opinion regarding the statutory grounds for the application,

		(b)     given consideration to making a costs order and

(c)	determined whether, in all the circumstances, it is appropriate to do so, 
	including, the terms of any such order.

	(See Harvey at T [1045} et seq. and Criddle –v- Epcot Leisure Ltd an unreported decision of the EAT dated 24 June 2005)

13.		I do not find that there has been any vexatious, abusive or disruptive actions on the part of the claimant or his representative in bringing or conducting these proceedings.

14. 		Were the proceedings misconceived i.e. did the claimant or his representative believe they had no reasonable prospect of success? Certainly the respondent has sought to so persuade the claimant from an early stage but it did not succeed. It is my view that the claimant still believes that he has been the victim of a ‘pattern of discrimination’ by the respondent and that he has been denied the opportunity to try to prove this by not being permitted to compare himself to those candidates whom he had identified as his comparators. While I have looked at the merits of his case, I do not believe the claimant’s view is correct.

15. 		Did the claimant or his representative act ‘otherwise unreasonably’ in their conduct of these proceedings as the respondent has submitted. In my view, the answer is in the affirmative. 

16.		In the letter of 4 March 2005, Mr Bowers acknowledges that the claimant did not contend that those short-listed were less qualified than he and that his ‘comparators’ were successful only in subsequent competitions. When I asked him about any advice he gave the claimant in the light of these contentions, Mr Bowers acknowledged his lack of expertise in discrimination law. He was aware of the duties and responsibilities of the Equality Commission, the Labour Relations 

	Agency and the Law Centre. He said that he had sought advice from lawyers, but he still seemed unaware that unlawful discrimination is less favourable treatment on grounds of 	religious belief and/or political opinion. To prove this to a Fair Employment Tribunal, claimants have to provide evidence that those treated more favourably – in this case short-listed – were not as well qualified or experienced as 	the claimant AND that the reason for his treatment was religious belief and/or political opinion. What happened to 	other candidates in different recruitment exercises before different panels on different dates has no relevance to this case.   In my view, it was unreasonable for the claimant and/or his representative to continue to seek to include irrelevant and potentially prejudicial material in evidence when the tribunal has twice directed otherwise.

17. 		In considering making a costs order, I have borne in mind that under this statutory provision, a costs order is an ‘exceptional ‘ occurrence which must not make the claimant feel under undue pressure to withdraw or that he is denied  a fair hearing of his case. ( Gee –v- Shell UK Ltd [2003] IRLR 82) This is especially relevant in this case where the claimant has several other claims still ongoing.

	I have also to draw a line between ‘robust, effective and fair case management’ on one hand and ‘inappropriate pressure and unfairness’ on the other (Lodwick –v- London Borough of Southwark [2004] IRLR 554) and that the aim of a costs order is to compensate the winning party rather than punish the losing party. (Davidson –v- John Calder (Publisher) Ltd [1985] IRLR 97).

18. 		This latter consideration is particularly apt in this case where there has been no substantive hearing of the merits of the case. It was also the situation in the case of McPherson –v- BNP Paribas [2004] IRLR 559 which I relied on in exercising my discretion relating to the appropriateness of making an order. Mr McPherson had also withdrawn his claim shortly before the hearing. The tribunal’s decision to award costs of over £90,000 against him was upheld by the EAT. The Court of Appeal allowed his appeal to the extent of varying the costs order. It held that in exercising its discretion, a tribunal must have regard to the nature, gravity and effect of the unreasonable conduct. 

19. 	On the basis of the above, I find it appropriate in this case to make an award of costs against the claimant.

20.		The record of proceedings of the Case Management Conference held on 1 February 2005 states that the cases were not suitable for consolidation because of the different short-listing panels and that costs would be pursued. It goes on to identify the issues for the tribunal and these are stated to relate to the failure to be short-listed in October 2002. The claimant carried on regardless to refer to subsequent recruitments and his other claims.

21.	As already stated, two further hearings were required.  At the first, on 12 April 2005, the claimant was ordered to pay costs of £75.00.  I consider that an award of £200.00 costs in respect of the second hearing to be appropriate in all the circumstances, to be awarded to the respondent.

Chairman:

Date and place of hearing:	6 September 2005, Belfast.

Date decision recorded in register and issued to parties: