Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2009] NIFET 96_7FET, [2009] NIFET 96_07FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 96/07FET

CLAIMANT: Ivan Kirkpatrick

RESPONDENTS: 1. Belfast City Council

2. Trevor Salmon

3. Stanley Black

4. George Wright

Constitution of Tribunal:

Chairman: Mr B Greene

Members: Mrs J McCormick

Mrs B Callaghan

Appearances:

The claimant was represented by Mr P Moore.

The respondents were represented by Mr P Ferrity, of counsel, instructed by, Belfast City Council, Legal Services Department.

DECISION

The decision of the Tribunal is that the respondents’ application for costs is refused. The claimant’s application for costs is dismissed following its withdrawal by the claimant.

THE CLAIM

1. A decision of the Fair Employment Tribunal was issued on 13 November 2008 dismissing the claimant’s claim of discrimination on the grounds of religion. By letter of 4 December 2008 the respondents made an application for costs against the claimant. The claimant similarly made an application for costs against the respondents on 15 December 2008.

THE ISSUES

2. The issues for the Fair Employment Tribunal were whether an order for costs;-

(1) should be made against the claimant in favour of the respondents, and if so in what amount, and

(2) should be made against the respondents in favour of the claimant, and if so, in what amount?

At the outset of the hearing Mr Moore, on behalf of the claimant, withdrew the application for costs on behalf of the claimant. The respondents did not object. Accordingly that application is dismissed.

THE FACTS

3. (1) In dismissing the claimant’s claim the Fair Employment Tribunal found that the claimant had not adduced sufficient evidence to shift the burden of proof to the respondents.

(2) The respondents sought costs against the claimant on 4 December 2008 on the grounds that the bringing or conducting of the proceedings by the claimant had been misconceived or that in bringing or conducting the proceedings the claimant had acted vexatiously or unreasonably (Regulation 35(3), Schedule 1, the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005).

(3) In defending the claim the respondents sought additional information from the claimant on 6 August 2007 seeking details of the alleged discrimination of the respondents.

(4) On 19 October 2007 at a Case Management Discussion the Tribunal made Orders for Additional Information in favour of the respondents.

(5) The claimant made replies on 25 October 2007.

(6) The respondents’ representative wrote to the claimant on 31 October 2007 stating that they were dissatisfied with the replies provided by the claimant in the letter of 25 October 2007. They mentioned that respondents 2 - 6 were co-religionists of the claimant and no claim about a failure to be appointed to the post of Property Maintenance Manager appeared in the claimant’s originating application.

(7) Further replies were provided by the claimant on 8 November 2007 in which it was stated that sufficient details had been provided. The further replies also dealt with outstanding issue of grievances brought by the claimant.

(8) A Case Management Discussion was held on 13 November 2007. At the Case Management Discussion the claimant’s representative stated that the claimant’s claim was one of direct religious discrimination in relation to the non-appointment of the claimant to the post of Property Maintenance Manager. He accepted that the issue related to the actions of the co-religionists of the claimant.

The Tribunal accepted that it was impossible for the respondents to identify clearly the issues in the case and an Order for Additional Information was made in accordance with the respondents’ letter of 6 August 2007.

(9) On 24 December 2007 the claimant in person sent a response of some 39 paragraphs to the respondents’ response form paragraph 5.2. It is not clear what the document purports to be but it did not contain any further elucidation.

(10) An Order for Additional Information was issued on 4 January 2008.

(11) The respondents’ representative wrote to the Office of the Tribunals on 1 February 2008 indicating that at the Case Management Discussion scheduled for 8 February 2008 the respondents wished to deal with the lack of satisfactory replies from the claimant. They also stated that they would be seeking costs for failure to comply with Orders of the Tribunal and seeking to have the claimant’s claim struck out in whole or in part as being misconceived or by reason of not having complied with the Orders of the Tribunal or because the claimant’s claim had no reasonable prospect of success.

(12) The claimant provided replies on 4 February 2008. In those replies the claimant reiterated that by not getting the post of Property Maintenance Manager that this was an act of religious discrimination. The replies also dealt with a number of complaints that the claimant had in relation to his work over a number of years. No further elucidation was provided on his claim.

(13) At the Case Management Discussion on 8 February 2008 the Tribunal considered the respondents’ request of 1 February 2008; that the claimant’s claim be stuck out for non-compliance with Tribunal Orders or because the claim was misconceived; or that the making of a deposit be considered because the claimant’s claim had no reasonable prospect of success.

(14) At the Case Management Discussion Mr Moore reiterated that the claimant’s claim was for religious discrimination by not being appointed to the post of Property Maintenance Manager and suggested that the extensive background set out by the claimant was relevant on the basis of the Anya decision. The Case Management Discussion record shows that the respondents indicated that they would issue a further Notice for Additional Information in relation to respondents 2 – 6. The respondents did not pursue their application for costs or for a strike out or for a deposit.

(15) On 27 February 2008 the respondents issued a fresh Notice for Additional Information. Replies were received on 20 March 2008.

(16) A Case Management Discussion was held on 3 April 2008 to prepare the claim for hearing. The legal and factual issues were agreed between the parties and they relate to the non-appointment of the claimant to the post of Property Maintenance Manager. It also emerged at the Case Management Discussion that the interlocutory matters were then complete. The respondents did not raise any query about the satisfactory nature or otherwise of the information provided. No attempt was made at the Case Management Discussion to claim that the claimant’s claim was misconceived or to seek a strike it out or to seek costs or to raise issues about the alleged discrimination of respondents 2 – 6, co-religionists of the claimant. The claimant formally withdrew his claim against two of the named respondents.

(17) The respondents rely on a number of other factors in support of their application for costs;-

(a) That two assessments were done by English companies as part of their recruitment exercise for the post of Property Maintenance Manager.

(b) One of the persons on the appointment panel for the post of Property Maintenance Manager was a Catholic who marked the claimant lowest and no complaint is made about her participation yet there is a complaint about another Panel Member and respondent Mr Wright who marked the claimant highest.

(c) The only explanation advanced as to why the co-religionists of the claimant, George Wright and Stanley Black, would seek to secure the appointment of a Catholic was to correct an imbalance. Mr Ferrity reminded the Tribunal that that contention did not stand up to scrutiny.

(d) Very little of the claimant’s witness statement deals with the recruitment process.

(18) By letter of 10 July 2008 the respondents’ representative invited the claimant to withdraw his claim and stated its belief that in pursuing the claim the claimant was acting unreasonably and that the proceedings were misconceived. It further advised the claimant that should the respondents be successful in defending this claim an application for costs would be made.

(19) Mr Ferrity argued that by not achieving the standard of evidence whereby the burden was shifted that the claimant’s case was akin to being dismissed at a direction stage in civil proceedings.

(20) Proof of discrimination is difficult and often times is a matter of inference.

(21) The respondents submitted a Bill of Costs which exceeds significantly the £10,000 limit of the Fair Employment Tribunal. However, the respondents are foregoing any amount in excess of £10,000.

LAW

4. (1) The Fair Employment Tribunal may make an Order for Costs (Regulation 34(1), Schedule 1, the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005).

(2) The Fair Employment Tribunal shall consider making an Order for Costs where the bringing or conducting of the proceedings has been misconceived by the paying party or that in bringing or conducting the proceedings the paying party has acted vexatiously or unreasonably (Regulation 35(3), Schedule 1, the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005).

(3) The maximum amount of costs that the Fair Employment Tribunal can order is £10,000. If a party is seeking costs in excess of that the quantum needs to be assessed by the County Court (Regulation 36, Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005).

(4) Misconceived includes having no reasonable prospect of success (Regulation 2(1) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005).

Misconceived seems to require an objective test relating solely to the substance of the case as pleaded and presented. However, as misconceived applies also to the bringing and conducting or the proceedings it suggests factors other than a purely objective appraisal of the case can and perhaps should be taken into account before making an award of costs (Harvey on Industrial Relations and Employment Law T [1059]).

(5) The Tribunal has a discretion whether or not to award costs on the misconceived ground if it considers that in all the circumstances the award of costs is inappropriate (Harvey on Industrial Relations and Employment Law T [1060]).

(6) Vexatious conduct involves the bringing or conducting of proceedings for some spiteful or improper motive amounting to an abuse of the process of the Tribunals. In terms of a claimant’s conduct it was described in the decision of ET Marler Ltd v Robertson [1974] ICR 72 NIRC at 76 as follows;-

“If 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 acted vexatiously, and likewise abuses the procedure. In such cases the Tribunal may and doubtless usually will award costs against the employee …”

(Harvey on Industrial Relations and Employment Law T [1044]).

(7) Tribunals have a wide discretion to award costs where they consider that there has been unreasonable conduct in the bringing or conducting of proceedings. Every aspect of the proceedings is covered, from the inception of the claim or defence, through the interim stages of the proceedings, to the conduct of the parties at the substantive hearing. Unreasonable conduct includes conduct that is vexatious, abusive or disruptive. When making a Costs Order on the ground of unreasonable conduct, the discretion of the Tribunal is not fettered by any requirements to link the award causally to the costs incurred as a result of the conduct that has been identified as unreasonable. … In McPherson v BNP Paribas (London Branch) [2004] ICR 1398, Mummery LJ stated (at paragraph 40);-

“The principle of relevance means that the Tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion but that is not the same as requiring the receiving party to prove the specific unreasonable conduct by the paying party caused particular cost to be incurred”. (Harvey on Industrial Relations and Employment Law [1043]).

(8) 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 be taken to have known that his case is unmeritorious. (Harvey on Industrial Relations and Employment Law T [1047]).

SUBMISSIONS

Respondents

5. (1) The respondents outlined the legal requirements for costs on the grounds alleged by them, that the bringing and conducting of the proceedings was misconceived or that in bringing or conducting the proceedings the claimant had acted unreasonably or vexatiously. In support the respondents outlined the chronology of the claim and in particular the interlocutory process.

(2) Mr Ferrity argued that it should have been clear to the claimant from the outset that his claim was misconceived as it lacked an essential ingredient of being able to show that the treatment of the claimant was on the grounds of religion. This would have been made clearer if he had addressed the issue raised by the respondents during the interlocutory process that the named respondents 2 – 4 were co-religionists of the claimant.

(3) Mr Ferrity further submitted that the reason the claimant pursued the claim was to deal with what he regarded as unsatisfactory dealing with his grievances by the first respondent. He contended that the point was illustrated by a comment made by Mr Moore in the course of the submissions that if the grievance had been answered by the first respondent the case would have been withdrawn.

(4) There was an absence, Mr Ferrity submitted, of any analysis of the case the claimant was making.

(5) There is no suggestion that the claimant is an impecunious person.

(6) The respondents referred the Tribunal to the cases of Ray Quinn v Northern Ireland Trucks Ltd (Case Ref. 220/08); Paul Gannon v Wave Trauma Centre (Case Ref. 352/07) and James Wilkinson v Belfast City Council (Case Refs. 423/04FET and 202/05FET).

Claimant

(1) Mr Moore submitted on behalf of the claimant that allegations of discrimination present considerable problems for any claimant. Except in a small number of blatant cases the perception of discrimination is based on circumstantial evidence coupled with a mixture of inference, suspicion and even speculation.

(2) The changing of the burden of proof is a recognition of the difficulty faced by a claimant. Mr Moore referred the Tribunal in support of his submission to the decision of Wilkinson v Belfast City Council and paragraph 3 of that decision where the Tribunal recorded;-

“Before embarking on our consideration of the respective claims for costs, we remind ourselves that despite the now extensive provisions in relation to costs tribunals remain largely a cost free zone and that an award of costs is very much the exception rather than the rule as is emphasised by the limited circumstances in which costs maybe awarded and the case law in this area. We also bear in mind that the tribunal should be slow to award costs against an unsuccessful claimant in a discrimination case given that it remains difficult to prove discrimination particularly in the absence of direct evidence. …”

(3) Mr Moore submitted that the Wilkinson case was similar to the case before the Tribunal and in that case costs were not awarded.

(4) On behalf of the claimant Mr Moore contended that the requirements of a vexatious claim had not been established. The claimant did not act out of spite nor with an expectation of not receiving compensation nor was the claim hopeless nor was there an improper motive.

(5) Mr Moore further contended that the claimant had dealt appropriately with the interlocutory matters. He reminded the Tribunal that at the Case Management Discussion on 3 April 2008 the record shows that the interlocutory process was complete. There was no follow-up by the respondents by way of seeking a strike out on the grounds that the claim was misconceived or to seek a deposit. Nor was a matter raised as an issue about the co-religionists of the claimant.

(6) Costs, Mr Moore contended, are rare and are not intended to be punitive.

(7) Mr Moore referred the Tribunal to the well known statement from the case of ET Marler v Robertson [1974] ICR NIRC where Sir Hugh Griffiths stated:-

“Ordinary experience of life frequently teaches us that what is plain for us all to see once the dust of battle has subsided was far from clear to the combatants once they took up arms.”

(8) Mr Moore suggested that the cases of “Abram, Gill and Quinn”, where costs had been awarded, were distinguishable from the facts of this particular case.

CONCLUSIONS

6. The Tribunal has carefully considered the matters put before it in this costs application, the applicable law and the submissions of the parties. It has concluded that it will refuse the respondents’ application for costs. In so concluding the Tribunal had regard to the following matters;-

The award of costs is discretionary and not punitive.

As stated by Sir Hugh Griffiths in Marler v Robertson, “Ordinary experience of life frequently teaches us that what is plain for us all to see once the dust of battle has subsided was far from clear to the combatants once they took up arms.”

The warning of the English Court of Appeal in the case of Igen v Wong [2005] 3 All ER 812 in its annexe at paragraph 3 where it stated;-

“It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that he or she would not have fitted in.”

(4) The Tribunal’s decision in this matter at paragraph 5.10 referring to the case of Nagarajan v London Regional Transport [1999] ICR 877, 884 Lord Nicholl said;-

“… Treatment, favourable or unfavourable, is a consequence which flows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to deduced, or inferred, from the surrounding circumstances.”

(5) The failure to achieve the evidential requirement of shifting the burden in a discrimination case is significantly different to a successful application for a direction in the civil courts. In a civil case where there is a successful application for a direction the defendant’s evidence will not have been heard whereas in a discrimination claim all the evidence has been heard.

(6) Given that discrimination is often only established by inferences drawn from the primary facts as found it would not have been clear to the claimant at the outset or indeed during the process of the hearing that his claim for religious discrimination was misconceived.

(7) In support of the vexatious claim the respondents rely on an improper motive on the part of the claimant i.e. the dealing with the claimant’s work grievances.

The Tribunal is satisfied that the claimant has not embarked on a costly, stressful and prolonged case merely to deal with a grievance. Nor are we persuaded that this was done out of spite. Mr Moore’s comment about not pursuing the claim if the grievance had been dealt with can easily be understood as meaning that had the respondents accepted the claimant’s criticism that he should have been appointed to the Property Maintenance Manager post and acted upon that that the claim would never have been started.

(8) The Tribunal is not persuaded that in pursing or conducting this claim the claimant has acted unreasonably. His claim before the Tribunal was always about his non-appointment to the post of Property Maintenance Manager.

Chairman:

Date: 20 and 21 April 2009, Belfast.

Date decision recorded in register and issued to parties: