FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 113/13FET
CLAIMANT: Shane O’Hare
RESPONDENT: South Eastern Health and Social Care Trust
DECISION ON COSTS
The decision of the tribunal is that the claimant is awarded costs in the sum of £1,216.00 by way of a Preparation Time Order.
Constitution of Tribunal:
Employment Judge: Employment Judge Murray
Members: Mr A Kerr
Mrs T Madden
The claimant was represented by Mr Cherry.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by the Directorate of Legal Services.
1. By a decision of this tribunal issued on 25 November 2014 the claimant was successful in a claim of discrimination on grounds of religious belief and/or political opinion and was awarded the sum of £9,900.00 compensation.
2. The claimant sought a Preparation Time Order to cover preparation time of 125 hours. In his letter of 8 December 2014 requesting the Order the claimant alleged that the respondent’s defence was misconceived. In that letter the claimant homed in on the respondent’s defence of the Working Well Together (WWT) investigation, report, and review.
3. The claimant’s letter of 18 December 2014 states as follows:
Office of the Tribunal & Fair Employment Tribunal
I refer to the above case and the Tribunal’s decision of 25 November 2014 (as Attached).
The Claimant, Mr O’Hare, had no legal representation and as such would like to submit an application for preparation time of 125 hours. Having no legal experience this preparatory time was particularly related to research into the Respondent’s policies, the rights of the claimant and the Industrial Tribunal Procedures. The preparation time also included correspondence with the Respondent, preparation of case notes, witness statement, cross examination notes and preparation of all the bundles. These actions were all prior to the Industrial Tribunal Hearing and the request excludes the time spent at the 6½ day hearing. The claimant believes this preparation request is reasonable and contributed to an uninterrupted hearing with little adjournments in a complicated case. The claimant would also highlight that in relation to the Respondent’s costs of £10K (served prior to the hearing) his request is reasonable.
The claimant believes that the Respondent’s defence was misconceived on a number of issues where their Managers and HR consistently failed to investigate the Claimant’s complaints and to follow the Respondent’s procedures and Guidance. I would also like to particularly highlight two main areas of misconception:
· In defending the Respondent’s initial Working Well Investigation. The Respondent defended its investigation despite the fact it did not investigate all the issues, raised by the claimant, witnesses were not interviewed and that the investigation should have been investigated under their Harassment Policy as the claimant had claimed religious and sexual orientation. Discrimination.
· In defending the Respondent’s Working Well Investigation Review. Again, the respondent defended its review despite the fact it did not investigate all the issues raised by the claimant and that the investigation should have been investigated under their Harassment Policy.
I would hope that you will look favourably on the Claimant’s request.
4. A Case Management Discussion was held on 21 January 2015 to list the Costs Hearing and to timetable the submissions. At that CMD the claimant’s representative was provided with a copy of the relevant parts of the Rules.
5. At the Costs Hearing the claimant alleged that the respondent, in defending the Working Well Together (WWT) process, acted vexatiously or unreasonably and that the defence of the proceedings in that regard was misconceived. (Rule 38(3)).
6. At the Costs Hearing both sides were given the opportunity and were invited by the Employment Judge to address the tribunal on the legal provisions and any relevant legal authorities. Both sides declined to do so.
SUBMISSIONS OF THE PARTIES
7. The claimant’s submissions can be summarised as follows:
(1) The respondent had acted vexatiously in defending that part of the claim related to WWT, given the finding of the tribunal that there was a culture of tolerance of sectarian behaviour;
(2) The defence was misconceived in defending that part of the claim because the managers did not follow their own guidance; the review of the WWT request by the claimant was in exactly the same terms as the claim made in the claim form to the tribunal; and, if that had been investigated properly and the complaint properly managed the claimant might not have proceeded with his claim. In essence Mr Cherry alleged that the respondent acted unreasonably in that it failed to identify obvious failings and failed to follow its policies which were simple and uncomplicated.
(3) Mr Cherry’s point was that it should have been obvious to the respondent that they had not followed their own policies, that the WWT investigation and review were inadequate and he pointed to the findings of the tribunal in the decision at paragraphs 33 and 35 to support his application.
(4) Mr Cherry accepted that the 125 hours claimed related to preparation for the entire case.
8. The respondent’s submissions can be summarised as follows:
(1) Mr Hamill stated that he was not on notice in advance of the hearing that the claimant relied on three aspects of the relevant Rule but was content that he could deal with the application at the hearing;
(2) That there was nothing to indicate vexatious behaviour to meet the threshold in the Rule as defined by the authorities;
(3) That there was nothing to indicate that the test of misconceived had been met;
(4) That essentially the claimant was restating the grounds on which he succeeded in the claim and this was not a reasonable basis for costs to be awarded on grounds of unreasonable conduct.
(5) That there was no evidence of clear unreasonable behaviour;
(6) The claimant was successful in approximately 16 allegations of discrimination and one of victimisation. The claimant withdrew three allegations, was unsuccessful on approximately seven allegations and his claim of sexual orientation discrimination was unsuccessful;
(7) That it was unreasonable for the claimant to ask for costs because the respondent could do the same given that the claimant was unsuccessful in parts of his claim. Mr Hamill confirmed that the respondent did not seek costs against the claimant but submitted that this was a factor for the tribunal to take into account;
(8) That Mr Stephens who was one of two people who dealt with the WWT process was not found to be dishonest in his evidence and that it was necessary to hear evidence from him in order to make its finding at paragraph 35.13 in the decision;
(9) That the 125 hours claimed was not vouched or accepted and it was not clear as to whether that was the claimant’s time or Mr Cherry’s. There was no evidence of Mr Cherry being an advisor or employee and his time was therefore not covered by the Rules;
(10) That the WWT element of the claim was only one aspect of a massive case;
(11) That it was not unreasonable for the tribunal to assess the time spent on the WWT element of the claim by looking at the time spent at hearing on WWT in order to assess how many hours would have been used to prepare for that element of the hearing;
(12) That it would not be reasonable for the tribunal, in a partially successful case, to separate out different parts of the case in order to determine whether or not the claim would have been concluded in a shorter hearing with less preparation if the WWT element had not been included;
9. The tribunal’s power to award costs is contained in the Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the Rules”). The general power is outlined at Rule 37, the relevant parts of which state as follows:
“General power to make preparation time orders
37.—(1) Subject to paragraph (2) and in the circumstances described in rules 38 and 41 a tribunal or chairman may make an order (“a preparation time order”) that a party (“the paying party”) make a payment in respect of the preparation time of another party (“the receiving party”).
(2) A preparation time order may be made under rules 38 or 41 only where the receiving party has not been legally represented at a hearing under rule 22 or, in proceedings which are determined without such hearing, if the receiving party has not been legally represented when the proceedings are determined. (See: rules 34 to 36 on when a costs order may be made; rule 34(5) for the definition of legally represented; and rule 40 on the restriction on making a costs order and a preparation time order in the same proceedings.)
(3) For the purposes of these Rules preparation time shall mean time spent by –
(a) the receiving party or his employees carrying out preparatory work directly relating to the proceedings; and
(b) the receiving party’s legal or other advisers relating to the conduct of the proceedings, up to but not including time spent at any hearing under rule 22”. [emphasis added].
10. The Rules engaged specifically in this case are Rules 38(2) and 38(3) which state as follows:
“When a preparation time order may be made
38.—(2) A tribunal or chairman shall consider making a preparation time order against a party (the paying party) where, in the opinion of the tribunal or the chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered the tribunal or chairman may make a preparation time order against that party if it or he considers it appropriate to do so.
(3) The circumstances described 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”.
11. In relation to calculation of a Preparation Time Order Rule 39 states where relevant as follows:
“Calculation of a preparation time order
39.—(1) In order to calculate the amount of preparation time the tribunal or chairman shall make an assessment of the number of hours spent on preparation time on the basis of –
(a) information on time spent provided by the receiving party; and
(b) the tribunal or chairman’s own assessment of what it or he considers to be a reasonable and proportionate amount of time to spend on such preparatory work and with reference to, for example, matters such as the complexity of the proceedings, the number of witnesses and documentation required.
(2) Once the tribunal or chairman has assessed the number of hours spent on preparation time in accordance with paragraph (1), it or he shall calculate the amount of the award to be paid to the receiving party by applying an hourly rate of £25.00 to that figure (or such other figure calculated in accordance with paragraph (4)). No preparation time order made under these Rules may exceed the sum of £10,000.
(4) For the year commencing on 6th April 2006, the hourly rate of £25.00 shall be increased by the sum of £1.00 and for each subsequent year commencing on 6th April, the hourly rate for the previous year shall also be increased by the sum of £1.00”.
12. “Misconceived” is defined at Regulation 2 as follows:-
““misconceived” includes having no reasonable prospect of success”.
13. The tribunal’s jurisdiction in relation to costs is outlined in Harvey on Industrial Relations and Employment Law at division PI paragraphs 1044 – 1120 and at Division P Practice and Procedure at paragraphs 1026-1080. Harvey suggests that the test is more than a simple objective assessment of whether the party knew or ought to have known that his case lacked substance or merit. The tribunal must look at not just the proceedings themselves but the party’s conduct in bringing, defending or conducting the proceedings.
14. Harvey states at Division PI paragraph 1083:-
“When considering whether to award costs in respect of a party’s conduct in bringing or pursuing a case that is subsequently held to have lacked merit, the type of conduct that will be considered unreasonable by a Tribunal will obviously depend on the facts of the individual case, and there can be no hard and fast principle applicable to every situation. In general, however, it would seem that the party must at least know or to be taken to have known that his case is unmeritorious (see Cartiers Superfoods Ltd v Laws  IRLR 315).”
15. The tribunal must go through a two-stage process in determining whether to award costs. Firstly, a tribunal must determine whether the respondent in conducting the proceedings acted vexatiously or unreasonably or was misconceived. This is the threshold test. Secondly, the tribunal must decide whether or not it is appropriate to exercise its discretion to award costs in the particular circumstances of the case. (See Criddle v Epcot Ltd [UKEAT/0275/05] and Khan v Kirklees BC  EWCA Civ 1342.)
16. Costs Orders are exceptional in nature in the tribunals where costs do not normally follow the event as in the Civil Courts. In Gee v Shell UK Ltd  IRLR 82 Sedley LJ stated:
“It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to people without the need of lawyers, and that – in sharp distinction from ordinary litigation in the UK – losing does not ordinarily mean paying the other side’s costs”. (paragraph 35).
17. An Order for Costs must be compensatory and not punitive.
18. The tribunal must have regard to the overriding objective and to the comments of Girvan LJ in the case of Peifer v Castlederg High School and Western Education & Library Board & Another  NICA 49 where Girvan LJ stated as follows:-
“Tribunals should be encouraged to use their increased costs powers set out in the Rules of Procedure to penalise time-wasting or the pursuit of cases in a way which unduly and unfairly increases the costs falling on opponents”.
19. In the case of Barnsley Metropolitan Borough Council v Yerrakalva  EWCA Civ 1255, Mummery LJ reviewed the authorities in relation to the issue of costs. Mummery LJ said:
“7. As costs are in the discretion of the ET, appeals on costs alone rarely succeed in the EAT or in this court. The ET’s power to order costs is more sparingly exercised and is more circumscribed by the ET’s rules than that of the ordinary courts. There the general rule is that costs follow the event and the unsuccessful litigant normally has to foot the legal bill for the litigation. In the ET costs orders are the exception rather than the rule. In most cases the ET does not make any order for costs. If it does, it must act within rules that expressly confine the ET’s power to specified circumstances, notably unreasonableness in the bringing or conduct of the proceedings. The ET manages, hears and decides the case and is normally the best judge of how to exercise its discretion.
8. There is therefore a strong, soundly based disinclination in the appellate tribunals and courts to upset any exercise of discretion at first instance. In this court permission is rarely given to appeal against costs orders. I have noticed a recent tendency to seek permission more frequently. That trend is probably a consequence of the comparatively large amounts of legal costs now incurred in the ETs.
9. An appeal against a costs order is doomed to failure, unless it is established that the order is vitiated by an error of legal principle, or that the order was not based on the relevant circumstances. An appeal will succeed if the order was obviously wrong. As a general rule it is recognised that a first instance decision-maker is better placed than an appellate body to make a balanced assessment of the interaction of the range of factors affecting the court’s discretion. This is especially so when the power to order costs is expressly dependent on the unreasonable bringing or conduct of the proceedings. The ET spends more time overseeing the progress of the case through its preparatory stages and trying it than an appellate body will ever spend on an appeal limited to errors of law. The ET is familiar with the unfolding of the case over time. It has good opportunities for gaining insight into how those involved are conducting the proceedings. An appellate body’s concern is principally with particular points of legal or procedural error in tribunal proceedings, which do not require immersion in all the details that may relate to the conduct of the parties.
41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. …”
20. One of the leading cases in relation to the exercise of the discretion is the case of McPherson v BNP Paribas  EWCA Civ 569 where the Court of Appeal held that there was no necessity for a causal link between the party’s unreasonable behaviour and the costs incurred by the receiving party. The Court found that, in exercising its discretion to award costs, the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct. However, the discretion is not limited to those costs that are caused by or attributable to the unreasonable conduct. The unreasonable conduct is a pre-condition of the existence of the power to order costs and it is also a relevant factor to be taken into account in deciding whether it makes an order for costs and the form of the order, but that is not the same as requiring a party to provide that specific unreasonable conduct caused the particular costs to be incurred.
21. In a decision of the EAT in the case Peat & Others v Birmingham City Council [UKEAT/0503/11], Supperston J noted that for a party to succeed in arguing for costs on the basis of unreasonable conduct, it was not necessary to show that the other party had no reasonable prospect of success.
22. In the case of Arrowsmith v Nottingham Trent University  EWCA Civ 797, ICR 159, the Court of Appeal held that lying in evidence can found an Order for costs as this is one of the factors the tribunal can take into account in deciding whether an Order for costs is appropriate.
23. In Harvey at Division PI paragraph 1068 it is stated:-
“The Court of Appeal has emphasised that a lie will not necessarily, of itself, be sufficient to found an Order for Costs (nor, conversely, will the absence of a lie necessarily mean that there cannot be a finding that the proceedings have been brought or conducted unreasonably or are misconceived … .” [emphasis added].
24. The classic definition for vexatious claims is found in the case of ET Marler Ltd v Robertson  ICR 72, as follows:-
“ … an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously.” (emphasis added)
The Court made clear that this was a high hurdle for a party to show, stating:-
“ … it is a serious finding to make against an applicant, for it will generally involve bad faith on his part and one would expect the discretion to be sparingly exercised … .”
25. In the case of HM Attorney General v Bentley  (UKEAT/0556/11) the Tribunal referred to the judgment of Bingham CJ, the EAT quoted from the case of HM Attorney General v Barker  SCR 1, as follows:
“The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that, whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the Court, meaning by that a use of the Court process for the purpose or in a way which is significantly different from the ordinary and proper use of the Court process.”
26. The Employment Appeal Tribunal also referred to the judgment of Rimer J, as he then was, in the case of HM Attorney General v Roberts  AER (D) 138, when at Paragraph 6 of his judgment he said as follows:-
“Most cases of allegedly vexatious litigants, as Lord Bingham there points out (in a reference to Barker), concern repeated claims or applications in respect of one particular matter by which the litigant has become obsessed, commonly involving the same defendant or defendants. In the employment law field this is a less common feature. Instead, what is commonly seen in the making of repeated applications of a like time to Employment Tribunals, usually against different respondents but founded on the like-basis … .”
27. In the case of Jackson v Walsall Metropolitan Borough Council [UKEATPA/1247/10], the Employment Appeal Tribunal decided that it would not interfere with the Employment Tribunal’s discretion to award costs against a claimant whose five claims had been dismissed, noting the claimant was a barrister with special experience in employment law and this meant that she should be alert to weaknesses in her case. It also confirmed that a barrister specialising in employment law and asserting her knowledge is particularly open to scrutiny. We find this case relevant as the respondent was legally represented throughout these proceedings.
28. We are not satisfied that the respondent’s actions meet the test of vexatious litigation nor are we satisfied that the defence was misconceived, having regard to the authorities referred to above.
29. We find however that the respondent’s action, in continuing to defend the aspect of the claim relating to the WWT process, was unreasonable within the meaning of the Rule. Our principal reasons for so finding are set out below.
30. We found the following five incidents at paragraph 33 of our decision to amount to clear acts of discrimination on grounds of religious belief/political opinion:
(1) The Drumcree chicken incident in July 2011 which was admitted. Also involved in that incident was the comment “Micks at one end, oranges at the other” and an allegation of bunting in a corridor during the twelfth period.
(2) An adverse comment by Mrs Walker to the claimant about him taking time off over the twelfth fortnight.
(3) That Mrs Magee the claimant’s manager made an adverse comment to the claimant during the flags protest in January 2013. Mrs Magee admitted the comment at all stages.
(4) That Mrs Walker made adverse comments about the claimant taking the twelfth of July holiday off leading to her annoyance as it was “her religious holiday and not his”. Mrs Walker admitted these comments at all relevant stages.
(5) That Mrs Walker drew a Union flag on an official form and left it for her colleague. The form was seen by the claimant and he was understandably upset by it. Mrs Magee performed a perfunctory investigation into this matter and this elicited further adverse comments from Mrs Walker, which Mrs Walker admitted at all relevant stages. This incident occurred after the impugned WWT process.
31. We regard it as unreasonable for the respondents to have taken the view that they had a reasonable defence to the claim of victimisation on grounds of religious belief/political opinion relating to the WWT process (aside from the WWT Review).
32. The respondents’ defence to the victimisation claim in this regard was twofold, namely that the claimant suffered no detriment and that the treatment of the claimant was not motivated by animus towards him because he had raised a complaint of religious discrimination.
33. The shortcomings in WWT are outlined in our decision at paragraph 35.14:
“(1) Mrs Magee was reported to have denied completely that she had made the “tick box” comment when in fact she had admitted it to the team and this was recorded in their notes of her interview.
(2) In the conclusion of the report it was stated that religion was “not a factor in any other area of the claimant’s complaint” other than the tick box allegation when this was not in fact correct as the other specific allegations had been recorded in the note of the claimant’s interview and Mrs Magee had accepted that she had made the comment about flying the flag.
(3) The investigation team did not interview Mrs Walker or Mrs McMullan and if they had done so they would have found that Mrs McMullan supported some of the allegations made by the claimant.
(4) The team also had no regard to the explanation that the claimant was putting forward and ignored all but the tick box and flag comment issues.
(5) Mrs Magee’s points were accepted without challenge.
(6) Mr Stephens in evidence to us when giving an explanation for failing to take forward the Drumcree chicken allegation, stated that the reason was firstly, because it had happened so long before (that is in 2011); and secondly, that it was not relevant to the CCOT teams relationships and was therefore beyond the WWT teams remit. He acknowledged however that it did amount to context provided by the claimant to explain the relationships problem and no explanation was given by Mr Stephens for the fact that an older allegation (namely the tick box allegation which occurred in 2010) was investigated by the team.
(7) Mrs Baxter was not interviewed in relation to any of these points and this meant that she did not investigate the Drumcree chicken, micks and oranges and bunting issues. Whilst she conducted a perfunctory investigation when these came to her attention (when the claimant repeated these allegations in his claim to the tribunal) she found that the Drumcree chicken matter was admitted. We conclude that the WWT team could have established this as part of their investigation if they had bothered to pursue it.
(8) It was agreed that Mrs Magee was “reassured” by HR and Mr Stephens while the investigation was going on. This was in contrast to the treatment of the claimant, who was on sick leave with stress, yet no contact at all was made with him despite it being clear that he attributed his absence to problems in work. This lack of contact was also contrary to the Sickness Absence Policy.
(9) Mr Stephens spoke to Mrs Magee on 11 September 2013 essentially to reassure her that she had nothing to worry about. This was inappropriate contact particularly when contrasted with the lack of contact with the claimant. Mr Stephens’ resistance in giving any detail about the contact with Mrs Magee tainted his evidence for us and we do not accept that any discussion was simply related to the format of the forthcoming report.
(10) Mr Stephens believed that the claimant was raising the allegations of sectarian behaviour in order to illustrate the tension within the team. He did not however think the issue was one of direct discrimination but that it was more to do with “discomfort and isolation” on the claimant’s part. We find it most surprising that a manager of Mr Stephens seniority, when faced with such allegations as an explanation for an employee’s complaint about discomfort and isolation and problems with his line manager, did not recognise that this was potentially a serious matter which required thorough investigation.
(11) In contravention of the WWT policy the team did not switch to the Harassment policy when it was clear that the claimant was raising issues of sectarian behaviour which he said were relevant to his complaint”.
34. Mr O’Toole of the HR Department gave evidence about the correct policy which should have been used once the claimant complained of the detrimental acts perpetrated by his colleagues. He was the respondent’s own witness who presumably was interviewed by the respondent in preparation for the tribunal case. Mr Stephens gave no coherent explanation to us for the clear deficiencies and, in particular, he gave no reason for failing to switch to the Harassment policy as set out by Mr O’Toole’s evidence.
35. Mr Hamill relied heavily on paragraph 35.13 of our decision where we stated:
“We find that Mr Stephens was so focussed on “mending bridges” between Mrs Magee and the claimant that he closed his mind to the context which the claimant sought to put before him namely that there was a background of sectarian behaviour which the claimant put forward to explain the tensions between him and his manager”.
36. However, we also stated at paragraph 35.12 of our decision as follows:
“We found Mr Stephens’ evidence to be unsatisfactory as he was vague in his evidence on several important points and could give no reason for the admitted shortcomings in the investigation.
37. We reject the submission that we needed to hear evidence from Mr Stephens in relation to his state of mind to determine the deficiencies in the WWT process as set out above and in our decision. These deficiencies were reasonably clear from the papers from the very outset and particularly after the further investigation was done by Mrs Baxter, albeit that it also was inadequate.
38. As set out in our decision at paragraph 35.15, we noted our surprise that the issues brought to the WWT team in relation to sectarian allegations were recorded and almost nothing further was done. We further found at paragraph 35.18 that victimisation was made out on the basis that it was clear from the papers that WWT investigated all complaints and reached conclusions on them aside from those related to the sectarian allegations which were largely ignored or glossed over.
39. There were clear deficiencies apparent from the papers with the WWT process. In particular those deficiencies related to the use of the wrong policy when the claimant raised issues of religious discrimination; inconsistencies and unreasonable findings (for example in relation to Mrs Magee when she admitted the comment about the flying of the flag). We find that there was a likelihood, on any reasonable reading of the papers as the case unfolded from an early stage, of a finding of religious discrimination against the respondents in relation to WWT because those matters had been ignored or glossed over by WWT and key witnesses were not interviewed by WWT. We find that it was unreasonable for the respondents to continue to defend the WWT process given the divergence between the respondents’ own witnesses on the correct policy; the failure to use the correct policy with no explanation given by Mr Stephens for that failure; and the lack of an explanation for the failure to speak to relevant witnesses in relation to the five sectarian allegations.
40. Mrs Magee admitted sectarian acts and accepted sectarian behaviour of Mrs Walker. Mrs Walker made sectarian comments. The failure to interview Mrs Baxter meant that she did not carry out her investigation (albeit a limited one) until much later and that investigation revealed the Drumcree Chicken act was admitted and that this had clear sectarian connotations. Once the limited investigation was carried out following receipt of the ET1, several acts were admitted. It was unreasonable to view the Drumcree chicken matter as anything but sectarian discrimination once the claimant raised this with WWT as something he had been offended by. It was clear from any reasonable analysis of the relevant policies that the WWT policy should not have been pursued further once the claimant had alleged that sectarian acts had occurred and had explained the problems he had with his manager.
41. Mrs McMullan’s evidence to us clearly indicated support of parts of the claimant’s claim and she was called as a witness for the respondent. Mrs McMullan’s evidence could have been uncovered if WWT had been done correctly. It should have been apparent to the respondent when Mrs McMullan was interviewed for the purposes of her evidence for these proceedings or, at the very latest, when she prepared her statement for this case that she largely supported the claimant. The respondent should have recognised the likelihood that their defence of the WWT process would not succeed in light of her evidence and in light of the fact that WWT inexplicably failed to interview her.
42. The claimant did not challenge as unreasonable, and we do not find it unreasonable, for the respondent to have contested the time point and the allegations against Mrs Magee. The fact that the claimant withdrew or failed to persuade us on several allegations against Mrs Magee is however separate from the victimisation claim which centred solely on the WWT process. We rejected the victimisation aspect of the claim related to WWT on the grounds of sexual orientation given the time gap between the act of discrimination on that ground which we found to be time-barred. That does not however affect our view of the unreasonableness of the respondent in contesting the victimisation claim relating to discrimination on grounds of religious political opinion as regards WWT, given the admitted acts which we found to be discriminatory.
43. We therefore find that the threshold test has been met in that the claimant has persuaded us that the respondent was unreasonable in defending the victimisation claim on grounds of religious belief/political opinion in relation to the WWT investigation and report by Mr Stephens and his colleague. We wish to make clear that we reject any claim for costs in relation to the WWT review process as this post-dated the presentation of the claim to the tribunal.
44. We further find that it is appropriate in this case to award costs given the very clear and serious shortcomings which we found in our decision and which ought reasonably to have been apparent to the respondent from an early stage. If it was not apparent to the respondent from a very early stage it would certainly have been apparent to it after Mrs Baxter’s perfunctory investigation, after the WWT review or when the papers were perused and witnesses (particularly Mr O’Toole and Mrs McMullan) were interviewed in preparation for this case.
45. The effect of the unreasonable conduct was that that part of the claim could have proceeded on an uncontested basis or on a quantum-only basis with a much reduced hearing meaning that less preparation would have been required.
Assessment of Costs
46. This case ran over a period of eight days in September 2014. We heard evidence from eight witnesses for the respondent, three of whom gave evidence specifically in relation to the WWT process (aside from the WWT review). The evidence of those three witnesses took approximately one and a half days’ of Mr Cherry’s cross-examination. Those witnesses had provided statements in advance of the hearing which ran to approximately five pages and referred to numerous documents. The bundle of documents ran to approximately 400 pages of which approximately one third related to the WWT process.
47. A sizeable proportion of the witnesses and a large volume of documents in this case therefore related to WWT. If that matter had not been contested, the respondent could have contested the extent of the effect on the claimant of those acts but the preparation required would have been much less than that which had to be carried out for the claimant to prepare to contest these matters.
48. We find that the claimant still had to prepare the bulk of the case and peruse the bulk of the documents and we therefore refuse to award costs on the basis of preparation time of 125 hours.
49. In order to determine the number of hours properly allowable for preparation time relating to WWT, we take as a starting point the amount of time spent in hearing and the number of documents related to WWT. Approximately one quarter of the hearing dealt with the evidence of the claimant and the respondent’s witnesses on WWT. Approximately one third of the documents in the bundle related to that matter. Given our knowledge of the case formed following an assessment of, firstly, the witnesses; secondly, the documentary evidence referred to during the eight days of hearing; and, thirdly, our deliberations subsequent to the hearing, we assess the amount of time reasonably used of preparation for that aspect of the claim as amounting to 32 hours.
50. The hourly rate applicable is £38.00 per hour and the calculation therefore is as follows:
32 hours x £38.00 = £1,216.00
51. We reject the submission that, as Mr Cherry represented the claimant throughout, any preparation was his rather than the claimant’s and therefore fell outside the relevant Rule. In this regard we refer to Rule 37(3)(a) and (b). We are satisfied that Mr Cherry falls within the scope of the phrase “or other advisors” at Rule 37(3)(b).
52. If we are wrong in this interpretation we find that, given our knowledge of the case and the way it was conducted by Mr Cherry, it is clear that the case could not have been presented in the way that it was by Mr Cherry without the claimant’s full involvement in the preparation of the questioning and perusal of the documentation. We therefore accept that the 32 hours which we have awarded related to the claimant preparing this matter with Mr Cherry and is therefore allowable under Rule 37(3)(a).
53. In reaching our decision we are fully aware that costs are the exception rather than the rule in the tribunals and that we should be wary of applying hindsight following perusal of all the oral and documentary evidence. We are also mindful of the fact that the respondent should not be penalised with costs simply because it lost on several aspects of the claim.
54. We are, however, satisfied that, in this case, it should have been apparent from an early stage, on a reasonable analysis of the documentation and on any reasonable interrogation of the respondents’ witnesses (given that there was no hesitation on the part of key witnesses in admitting several matters to us which were clearly capable of being discriminatory) that it was unreasonable for the respondent to pursue a defence to the WWT investigation and report. That investigation and report were clearly deficient, clearly in breach of policies and there were clear contradictions and factual inaccuracies in the report as set out in our decision.
55. The claimant is therefore awarded the sum of £1,216.00 (inclusive of VAT) in respect of costs for preparation time.
Date and place of hearing: 5 March 2015 Belfast
Date decision recorded in register and issued to parties: