FAIR EMPLOYMENT TRIBUNAL

CASE REF:  25/10FET
273/10

CLAIMANT:		Helena Hughes

RESPONDENTS:		1.  Tom Morrow and Company Limited
		2.  Roberta Simpson

DECISION

The unanimous decision of the Tribunal is that the respondents’ application for costs  is dismissed.

Constitution of Tribunal:
Chairman:			Mr P Buggy	
Members:			Mr B McGuire
				Mrs S Butcher

Appearances:
The claimant was self-represented.
The respondents were represented by Dr D Sharpe, Barrister-at-Law (“Mr Sharpe”), instructed by Carson McDowell Solicitors.

REASONS

1.	This Decision should be read in conjunction with this Tribunal’s main decision in this case (“the Main Decision”) which was issued to the parties on 24 March 2011.  

2.	In these proceedings, the claimant had made a complaint of unfair dismissal against Tom Morrow and Company Ltd, and had made various complaints of religious discrimination against both of the respondents.  The outcome of the proceedings was that the complaint of unfair dismissal was upheld, the other complaints were dismissed and the sum of £10,238 compensation was awarded to the claimant in respect of the unfair dismissal.

3.	Subsequently, the respondents made an application for costs. At the end of the costs hearing, we announced our decision.  We now confirm that decision.  At the same time, we gave oral reasons for that decision.  We now confirm those reasons.  

4.	The effect of Rule 35(2) of the Fair Employment Tribunal Rules of Procedure (“the Rules”) is as follows.  A Tribunal must consider making a cost order against a claimant where, in the opinion of the Tribunal any of the circumstances in Rule 35(3) apply.

5.	The circumstances specified in Rule 35(3) are that the claimant has in bringing the proceedings, or she has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings  by the claimant has been misconceived.  For the purposes of the Rules, “misconceived” includes having no reasonable prospect of success.

6.	As Mr Sharpe accepted, this application for costs could not succeed unless one of the situations specified in Rule 35(3) applied in this case.

7.	The main hearing of these proceedings took place at the end of October 2010, at the end of November 2010 and on 20 December 2010.  On 14 October 2010, prior to the start of the main hearing, the respondents made an offer of settlement to the claimant.  The offer was made to her within the body of a letter marked “Without prejudice, save as to costs”.  The claimant was then offered £15,000, on the basis that the terms of settlement would be confidential.  On 29 October 2010, the respondents made a further “Without prejudice, save as to costs” offer of £20,000 to the claimant.  That offer was also made on the basis that the terms of settlement would remain confidential between the parties.  The claimant rejected both offers.  Both offers were made without any admission of liability. According to the respondents, both of those offers were made only for the purpose of minimising the respondents’ costs.  

8.	This application for costs was made on the basis that the claimant, by rejecting the two offers of settlement, acted unreasonably in continuing with her proceedings.  That application is based on the proposition that the claimant’s complaints of discrimination had no reasonable prospects of success, and that she had never had any good reason to believe that she would be awarded as much as £15,000 in respect of the unfair dismissal.

9.	Consistently, throughout her period of employment, the claimant was paid less than a Mrs Flanaghan, who did broadly similar work to the work which was being carried out by the claimant.  (Mrs Flanaghan was a Protestant, and the claimant is a Roman Catholic (“a Catholic”).  In these proceedings the claimant complained that this unequal pay was the result of anti-Catholic bias.

10.	As Mr Sharpe realistically accepted, if the claimant’s complaint of religious discrimination in respect of the unequal pay had been successful, she would probably have achieved an overall award of compensation (taking account of the amount which we have awarded in respect of unfair dismissal)  of at least £20,000. 

11.	We have dismissed this application for costs for two main reasons.  In our view, each of those reasons is, in itself, an adequate basis for rejecting the costs application.  

12.	We have dismissed the application for costs on the basis that the claimant did not act unreasonably in rejecting the two offers of compensation (the offers of £15,000 and £20,000 respectively).  Accordingly, because the claimant did not act “unreasonably” in refusing the relevant offers, the question of whether or not we should exercise any discretion to award costs is a question which does not arise for determination.

13.	As we pointed out in the Main Decision (at paragraph 108), it is grossly unfair for an employer to pay two women significantly different rates of pay, for carrying out broadly the same work, especially if their previous experience was also broadly similar.  The claimant is a Catholic.  Richard Morrow is a Protestant.  Mrs Flanaghan is a Protestant.  That combination of circumstances provided important support for the claimant’s claim of religious discrimination in respect of pay differentials.  

14.	Having considered the oral testimony of Mr Richard Morrow, and having considered all of the other evidence in this case, we were sure that he does not have any sectarian aversion to Catholics.  The outcome of the claim in respect of pay differentials might well have been very different if we had concluded that he did have such an aversion. Conclusions in respect of that aspect of the case could not sensibly have been arrived at without hearing all of the evidence in the case.  

15.	Accordingly, we reject the proposition that the claimant’s pay differentials religious discrimination claim had no reasonable prospect of success.  That is the first reason for our dismissal of this cost application.  

16.	Secondly, we consider that a claimant does not act unreasonably in rejecting an offer of compensation which adequately compensates her for an unfair dismissal if that offer is made subject to a requirement of confidentiality (and, in particular, confidentiality as to the fact that compensation has been paid by the employer).  

Chairman:

Date: 		24 June 2011, Belfast.

Date decision recorded in register and issued to parties: