Industrial Tribunals Northern Ireland Decisions

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Cite as: [2008] NIIT 379_6IT, [2008] NIIT 379_06IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 379/06 IT

CLAIMANT: Colin Mallon

RESPONDENT: Northern Ireland Railways Translink

DECISION ON COSTS

The Tribunal refused to make an order for costs.

Constitution of Tribunal:

Chairman: Ms P Sheils

Members: Ms F Graham

Mr B Heaney

Appearances: The claimant was present and was represented by his wife Mrs Deborah Mallon.

The respondent was represented by Mr Patrick Ferrity Barrister-at-Law instructed by Elliott Duffy Garrett, Solicitors.

The Issues

1. By letter dated 4 June 2008 the respondents wrote to the Office of the Industrial Tribunals and the Fair Employment Tribunal requesting a hearing of an application for costs against the claimant pursuant to rules 38 and 40 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedures) Regulations (Northern Ireland) 2005.

2. The Tribunal wrote to the claimant and his representative Mrs Mallon advising them of the date of this Hearing. The Tribunal also advised the claimant and his representative that in such applications the Tribunal may wish to hear from the claimant in relation to the claimant’s ability to pay any costs and advised the claimant to bring all relevant evidence in relation to this.

The Hearing

3. The Tribunal heard submissions from both parties. The Tribunal also received documents from the claimant including a detailed invoice from a solicitor dated 24 May 2006 and a document summarising the claimant’s essential monthly overheads, and details of his annual income and a single pay slip.

The Respondent’s Submissions

4. Mr Ferrity indicated that the basis of his application for costs was that all claims brought by the claimant had been misconceived and/or that in bring or conducting any or all of them the claimant had acted unreasonably.

Bringing or Conducting the Claims was misconceived

Mr Ferrity submitted that because the word misconceived in the legislation went beyond the former wording of there being “no reasonable prospect of success” that the legislation encompassed an additional concept to include instances where there was even an illogicality or a lack of coherence in the thinking on the part of the claimant that the grief or difficulties he was experiencing in his work situation ought ever to have translated into his bringing a claim or claims. Mr Ferrity submitted this was true of each of the claims brought by the claimant. Mr Ferrity dealt with each claim separately.

Unlawful Deduction of Wages

6. In relation to the claim of unlawful deduction of wages Mr Ferrity submitted that this claim had been the most misconceived of all the claims. This was on the basis that there was absolutely no evidence provided by the claimant to support the contention that he was either due or owed any monies over and above his basic pay. Mr Ferrity relied on paragraph 41 of the Tribunal’s decision,

“In the absence of any evidence from the claimant as to his entitlement to contractual overtime whilst on suspension the Tribunal found that the claimant was entitled only to basic pay.”

7. Mr Ferrity submitted that the only reason the claimant had brought this claim was that when the claimant had been a senior porter with the respondent company his terms of conditions of pay had entitled him to contractual overtime which included roistered hours. As Mr Ferrity submitted the only reason the claimant provided in support of such a claim was that when he was senior porter his terms and conditions did so entitle him to contractual overtime on full pay. Mr Ferrity urged the Tribunal to consider the fact that there was nothing in the documentation before the Tribunal to suggest that the claimant remained so entitled.

8. Mr Ferrity also submitted that in the event the Tribunal did not conclude that the bringing or conducting of the claim for unlawful deduction of wages had been misconceived Mr Ferrity urged the Tribunal to consider in the alternative that the claimant had been unreasonable in bringing and continuing with this claim. This was on the basis that the claimant had not raised the issue with the respondent company as a grievance. Mr Ferrity also urged the Tribunal to consider that the claimant bringing and continuing with this claim was unreasonable on the basis that the claimant continued to do so even after he had received a letter from the respondent company advising the claimant that he was only entitled to basic pay.

The Claimant’s Sex Discrimination Claim

Misconceived

9. Mr Ferrity submitted that the bringing and conducting of this claim was misconceived and/or unreasonable. Mr Ferrity relied on paragraphs 124 through to 126 of the Tribunal’s decision. At paragraph 125 the Tribunal concluded that the circumstances of the claimant’s complaint of sex discrimination were not the same or even materially similar to the circumstances in Mrs Casey’s complaint and that accordingly the Tribunal was not required to make any analysis of any difference in treatment between the two.

Mr Ferrity submitted that the basis on which he was arguing that for the claimant to bring or conduct his claim of sex discrimination was misconceived was that the claimant must have failed to address how any grievance about the difference in treatment between himself and Mrs Casey could have amounted to sex discrimination other than on the barest fact that the claimant was male and she was female.

10. Mr Ferrity also submitted that in continuing to conduct such a sex discrimination claim the claimant also failed to take into account the fact that the respondent company had ensured that both the claimant’s grievance and Mrs Casey’s complaint were investigated by a panel comprising both men and women and that this fact should have alerted the claimant to the idea that this would have acted as a safeguard against there being sex discrimination against him. Mr Ferrity accepted that the fact of a panel comprising men and women did not exclude the possibility of sex discrimination but submitted that it was a factor the claimant ought to have considered as militating against the idea that he had been discriminated against on the grounds of his sex.

11. Mr Ferrity also submitted that the fact that the company upheld Mrs Casey’s sexual harassment complaint and not the claimant’s sexual harassment complaint should not have been a fact that was indicative to the claimant of there being sex discrimination. Mr Ferrity submitted that it was perfectly plain from the law of sex discrimination that the fact alone that differences in the application of the respondent company’s Dignity at Work policy could result in differing outcomes but that the differing outcomes of themselves would not necessarily amount to evidence of discriminatory treatment between the parties.

Mr Ferrity submitted that it was no excuse for the claimant to say that he was not represented when he was represented by his wife and that therefore the claimant could not enjoy the benefit of ignorance of the law being no defence. Mr Ferrity added that if the claimant himself had thought about any claim he sought to bring of sexual harassment even a little more deeply he could easily have concluded that the reason for the differences in treatment between himself and Mrs Casey were not because of the difference between them in sex.

12. In this regard Mr Ferrity also relied on the fact that the Tribunal concluded that there were no facts adduced from which the Tribunal could conclude there had been discrimination that required any explanation from the respondent to explain or defend. Mr Ferrity argued that this was another example of the fact that the claimant had been misconceived in bringing and conducting his sex discrimination claim.

Unreasonableness

13. Mr Ferrity produced correspondence between the respondent company and Mrs Mallon, as the claimant’s representative, on 27 July 2007 putting her on notice that if the claimant pursued any of his claims that they would seek costs at the conclusion of the hearing. Mr Ferrity submitted that both Mrs Mallon and the claimant must have realised at some point in time during the conduct of the case, and in particular during cross examination, that the sex discrimination claim was unlikely to succeed. In support of this Mr Ferrity stated that the Tribunal’s ultimate decision was that there was no case for the respondent company to answer and that this supported the unreasonableness of the claimant in pursuing the matter to conclusion.

14. In particular Mr Ferrity drew the Tribunal’s attention to paragraphs 30 and 31 of its decision where the Tribunal rejected the claimant’s evidence in relation to there being no pockets in Mrs Casey’s uniform trousers and therefore the harassment of her by him would have been impossible on the basis that this version of events was “the last ditch attempt by the claimant to support his defence to the charge. The Tribunal rejected the claimant’s evidence on this and found that the claimant had invented this version of the evidence of the hearing.”

Unfair Dismissal- The Sexual Harassment Charge

Misconceived

15. Mr Ferrity submitted that the claimant had been misconceived in bringing and conducting an unfair dismissal claim in respect of where that dismissal had been on the basis of the sexual harassment charge against the claimant. Mr Ferrity submitted that the Tribunal’s decision and findings against the claimant make it clear that the claimant knew he was guilty of the sexual harassment of Mrs Casey as charged. Additionally the claimant was aware in so bringing such a claim that he was going to have to confront why Mrs Casey would be saying such things about him. Mr Ferrity reminded the Tribunal that the claimant had made a number of attempts during the hearing to ascribe motivation for the charge to Mrs Casey but that none had been successful. Mr Ferrity submitted that the claimant ought to have considered this aspect of bringing the unfair dismissal claim regarding the sexual harassment complaint against him before lodging the claim and that in this event the lodging of the claim was misconceived.

Unreasonable

16. Mr Ferrity also submitted that the claimant had failed to make proper preparation with regard to the nature of the Tribunal’s role which is to act objectively. Mr Ferrity suggested that the least preparation would have advised the claimant that the Tribunal could consider the respondent company’s actions towards the claimant might even have been wrong but could have been reasonable. Mr Ferrity submitted that it was not such a sophisticated exercise for the claimant to consider and think, in view of his past record and dismissal from Belfast City Council for apparently similar reasons, that “this case looks bad for me”. Mr Ferrity submitted that for the claimant to continue with the conduct of his case throughout the interlocutory proceedings and the hearing during the course of most of which it must have become clear to him that his case was unlikely to succeed was unreasonable. Mr Ferrity urged the Tribunal that the claimant must confront what this conduct has brought on him and that this should be reflected in an award of costs.

Unfair Dismissal – Falsification of Application Forms

Misconceived

17. The Tribunal found that the claimant had falsified his application forms for posts within Translink on two bases. One was that he had given erroneous qualifications he did not possess and the other was that he had omitted to include in his employment history a period of employment with Belfast City Council. In respect of both of these the false information on the application forms was to the claimant’s benefit. In the first instance the augmented qualifications allowed the claimant to be short listed for a post for which he would not have otherwise have qualified. In the second instance the false employment history had the effect of concealing from Translink the fact that the claimant had been dismissed from Belfast City Council.

18. Mr Ferrity submitted that in both instances where the claimant had falsified his application forms these had been to his benefit and that prior to bringing or conducting his dismissal claim in relation to these the claimant would have been aware of his own deliberate actions and the likely consequences within the respondent company on discovery. Mr Ferrity stressed that this prior knowledge of the claimant indicated that the decision to take the claim for unfair dismissal on this basis was misconceived.

Unreasonable

19. Mr Ferrity also stated that the claimant’s decision to bring and conduct his unfair dismissal claim in relation to the falsification of the application forms was unreasonable. Mr Ferrity drew the Tribunal’s attention to the fact that during the course of the respondent company’s investigation into the claimant’s allegations of sexual harassment that Mr Mal McGreevy had discovered the claimant had been sacked from Belfast City Council and for reasons not dissimilar to sexual harassment. Mr Ferrity suggested it was unreasonable for the claimant to have lodged proceedings in relation to this matter. However Mr Ferrity added that when at an earlier Case Management Discussion another Chairman gave an Order to disclose the claimant’s employment history at Belfast City Council, to which the claimant consented, the claimant would have known what those records contained and yet he decided to press on with the hearing.

The Claimant’s ability to pay.

20. Mr Ferrity relied on the Court of Appeal Case of Kovacs –v- Queen Mary and Westfield College [2002] IRLR 414. He also referred the Tribunal to the text of Blackstone on Employment law 2008 for the authority that while a Tribunal may take the claimant’s ability to pay into account it is neither not mandatory for the Tribunal to do so nor does any assessment of means prevent a Tribunal from making a costs order.

21. Mr Ferrity also referred the Tribunal to the case of McPherson –v- B N P Pharibus (London Branch) [2004] EWCA Civ 569 and submitted that in the exercise of its discretion to award costs the Tribunal was not limited to awarding only those costs that were actually occurred by the behaviours of the claimant himself.

The Submissions of the Claimant

22. On behalf of her husband Mrs Mallon submitted that the claimant did not accept costs ought to be awarded against him. Mrs Mallon advised the Tribunal that the claimant had been given legal advice at the time of his dismissal from the company and when he was appealing internally against that dismissal. This advice had been reasonably positive. The solicitor had helped the claimant draft the appeal document. However, when the claimant sought to return to the solicitor after his appeal had been unsuccessful the solicitor was on maternity leave and was subsequently taking a career break.

The claimant decided that he could not afford to go back to another solicitor. At the time of his dismissal the family household sustained loss of the claimant’s salary. Additionally the claimant had the first solicitor’s bill to pay which was approximately £1,850. Mrs Mallon advised the Tribunal that the claimant’s mother had had to pay more than half of this bill.

The claimant lodged his claims on the advices he had received to date and used the already-drafted appeal document as the basis of those claims.

24. Mrs Mallon went on to advise that under Rule 26 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 the respondents could have asked for a preliminary hearing on the basis that the claimant’s case was so without merit that it ought not to be pursued.

25. Mrs Mallon also referred the Tribunal to Rule 10 of those regulations, Case Management – General Power to Manage Proceedings – and stated that the respondents could have relied on this provision to bring the claimant’s case to an end at that point.

26. Mrs Mallon advised the Tribunal that both she and the claimant accepted the Tribunal’s decision. Mrs Mallon further accepted that the claimant’s resistance to the costs application was the more difficult in relation to his claims of unfair dismissal in relation to the application forms. Mrs Mallon accepted that the claimant had persisted in relation to the unfair dismissal but stated that this was on the basis that she as his representative had not realised that they could have disposed or abandoned parts of the claim.

Mrs Mallon suggested that as regards the claimant’s sex discrimination claim it had been reasonable for the claimant to continue to believe that he had not had an unbiased decision in relation to his own complaint of sex discrimination or in relation to the unlawful deductions of wages.

The Claimant’s Sexual Harassment Complaint

27. Mrs Mallon did not accept that the claimant had been either misconceived or unreasonable in bringing or conducting his sexual harassment complaint against the respondent company. In this regard Mrs Mallon submitted that the claimant’s claim had been that his sexual harassment complaint had been treated differently procedurally than Mrs Casey’s sexual harassment complaint and that the Tribunal had noted that there had been differences in the way in which the company policy had been applied. Mrs Mallon went on to suggest that it was reasonable for the claimant to have concluded that the difference in treatment between the claimant and Mrs Casey had put the claimant at a disadvantage which ultimately led his losing his complaint.

28. Mrs Mallon also submitted that prior to embarking on the Tribunal case they had been advised by the LRA in relation to arbitration. Mrs Mallon advised the Tribunal that they had contacted Translink who had declined to take part in the arbitration. Mrs Mallon suggested that this was evidence of the claimant having gone to some effort to find the means of resolving the issues between himself and the respondent company.

29. Mrs Mallon advised the Tribunal that when the claimant had received the respondent company’s letter putting him on notice regarding costs they had sought advices from a solicitor. This solicitor advised them that the letter was standard practice by legal firms. Mrs Mallon added that she and the claimant believed it was used by bigger companies against smaller people and that they had decided not to let it deter them from the claimant getting a hearing.

Ability to Pay

30. Mrs Mallon urged the Tribunal to give serious consideration to the claimant’s ability to pay any costs. Mrs Mallon submitted a document outlining the family’s essential monthly overheads which totalled £2566.20p.

31. Attached to this document was an assessment of Mr Mallon’s total income which averaged at a monthly figure of £1,047.85p. This document indicated that the claimant’s income contributed to 41% of the total household expenditure and that the claimant had no disposal income of his own. Mrs Mallon urged the Tribunal to consider Rule 38(6) of the Regulations which states that any cost order made under the rules shall be payable by the paying party and not his representative.

The Respondent’s Reply

32. Mr Ferrity submitted that on consideration of solicitor’s legal advices referred to in the invoice the solicitor had drawn attention to an area of concern in relation to the falsification of the application forms, stating that this might be the claimant’s “biggest problem”. Mr Ferrity suggested that this indicated that the claimant and Mrs Mallon were both made aware at an early stage of the difficulties facing them in that claim prior to lodging or conducting it.

33. In relation to the alleged failure by the respondent company actively to engage the tribunal Rules under the Regulations to strike out the case earlier Mr Ferrity refuted the suggestion that the respondent company would have been in a position at that early stage to demonstrate successfully that the case was misconceived. Mr Ferrity also stressed that his submission was not simply based on the premise of “you lost – now you pay” but that the claimant must have known from the outset in his own mind that he was embarking on and continuing with a case where it was more likely than not that he would have to pay the costs of that course of action.

Mr Ferrity refuted the Mrs Mallon’s suggestion that she and the claimant had sought to resolve the issues between the parties prior to the hearing. In the first instance Mr Ferrity stressed that the Labour Relations Agency is unable to arbitrate in sex discrimination cases and in any event arbitration in this instance involved the claimant’s requesting a substantial sum of money to resolve the matters between them.

Mr Ferrity challenged the claimant’s domestic potential monthly overheads. He submitted that it was disingenuous as it allowed no margin for frills holidays or other unexpected expenses. It contained no information regarding capital assets. He submitted that the position was that the claimant’s submission on household income indicated that the claimant earned £1,047.85 per month from which the Tribunal could order payments to meet the costs.

The Claimant’s Further Reply

35. Mrs Mallon on behalf of the claimant stressed that household income had substantially dropped since the claimant’s dismissal. There was no scope for luxuries. They had no savings. Emergency bills were paid by credit cards and paid off later.

The Law

36. The general power of the Tribunal to make costs orders is contained at Rule 38 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. At Rule 38(1) that Order provides subject to paragraph 2 and in the circumstances listed in rules 39, 40 and 47 the Tribunal or Chairman may make an Order (a Costs Order) that –

A party (the paying party) may make the payment in respect of the costs incurred by another party (the receiving party); Rule 38(6) provides any costs order made under Rules 39, 40 or 47 shall be payable by the paying party and not his representatives.

Rule 40(2) of the Regulations provide a Tribunal or Chairman shall consider making a costs order against the paying party where in the opinion of the Tribunal or Chairman as the case may be any of the circumstances in paragraph (3) apply. Having so considered, the Tribunal or Chairman may make a costs order against the paying party if it or he considers it appropriate to do so.

Rule 40(3) states 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.

37. The Tribunal concluded that, from its reading of Rule 40 (2), it must consider the making of a costs order against the paying party if it reached the conclusion that the paying party, the claimant, had in bringing the proceedings or in conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably or the bringing or conducting of the proceedings by the paying party had been misconceived.

38. However, it was also clear to the Tribunal from its understanding of Rule 40(2) that it does not follow from the mandatory obligation to consider the making of such a costs order that a cost order will be made. Rule 40(2) leaves the making of such a cost order in those circumstances at the discretion of the tribunal, (if the tribunal considers it appropriate to do so).

39. The Tribunal reminded itself of its obligations in its approach to the exercise of any such judicial discretion equitably, reasonably and fairly.

Case Law

40. The Tribunal also considered the relevant case law and in particular the cases of McPherson –v- Paribas, Jilley v Birmingham and Solihull Mental Health NHS Trust [2008] UKEAT/0155/07 and Kovacs –v- the Queen Mary and Westfield College 2002 IRLR 414.

The Tribunal Conclusions

Unlawful Deduction of Wages-Misconceived

41. The Tribunal accepted Mr Ferrity’s submission that the new terminology in a new rule “misconceived” included that it was not limited to the idea that a claim would have no reasonable prospect of success and that it had an additional dimension. The Tribunal also accepted Mr Ferrity’s suggestion that this other dimension to the meaning of misconceived was wide enough to envisage and include a claimant making false connections between his unhappy experiences in the workplace leading inevitably to having the basis of a legal claim.

42. However the Tribunal concluded that this was a fairly sophisticated interpretation of this legal concept and that in the circumstances of this case, where the parties were not legally represented, it would be more difficult for the respondent to succeed on this basis.

43. The Tribunal did not accept that simply because the claimant did not provide supporting evidence to show that he might have been entitled to more than basic pay was indicative of the fact that his claim to the Tribunal on that basis was misconceived. The Tribunal noted that the claimant had a previous contract in his role of senior porter that had given the claimant a different understanding of basic pay that was sufficient to cause him at least uncertainty about the validity of the new understanding of basic pay, which did not seem to the Tribunal to amount to such a false connection as Mr Ferrity suggested the legislation envisaged.

Unlawful Deduction of Wages-Unreasonable.

44. The Tribunal did not accept Mrs Mallon’s contention that the claimant had a reasonable belief that full pay on suspension would include allowances and enhancement on the basis that his senior porter pay had included these and the claimant had not been alerted to the fact that when he moved to the clerical grades this position would change.

45. The Tribunal did not accept that the difference in the contractual arrangements as between the senior porter post and the clerical post was the issue in the case. The issue in the case was that full pay whilst on suspension from the claimant’s post amounted to basic pay without allowances or enhancements and the claimant provided no evidence to the Tribunal that this would not have been the case if he had been suspended while working as a senior porter.

46. However that this was the issue in the case only became really clear at the Hearing. The differences in the points had not been made clear to the claimant sooner. What did transpire in the case was that the respondent company did not explain to the claimant why full pay in his case amounted to basic pay only.

47. The Tribunal took account of the fact that the claimant had been advised by Mrs Heather Grant on 8 November 2005 that he was suspended on full pay but when the claimant queried the meaning of full pay he was subsequently advised by Mr Hilton Power by letter dated 3 January 2006 that this referred to basic pay without any enhancements but that there was no explanation as to why this was the case.

48. The Tribunal also did not accept that the claimant’s failure to issue a grievance against the respondent company in relation to this pay issue could lead to the conclusion that his bringing or conducting a claim for unlawful deduction of wages would be unreasonable.

49. The Tribunal noted that the letter from Mr Parr in relation to the pay issue coincided with the claimant’s letter of dismissal and accordingly the claimant would not have been in a position to take a grievance within the company after that date. However the Tribunal noted that the claimant had raised the issue again at his appeal hearing in February 2006 and that he got no clarification from the company on the point thereafter.

Sex Discrimination Claim

Misconceived

50. The Tribunal did not accept Mr Ferrity’s contention that the claimant’s sex discrimination claim was misconceived on the basis that the only gender related fact between the claimant and Mrs Casey was the difference in sex between them.

51. The Tribunal noted that the basis of the claimant’s sex discrimination case was that Mrs Casey’s complaint of sexual discrimination and his were dealt with differently under the respondent company’s Dignity at Work policy. The Tribunal accepted that this had in fact been the case. However the Tribunal went on to find that this was not a fact from which sex discrimination could be concluded, without more.

52. The Tribunal had considered this difference of treatment in the context of the legislative framework which meant that it would only amount to a relevant difference in treatment if it arose in circumstances where one case was the same or more materially different than the other. The Tribunal concluded that the claimant’s complaint of sex discrimination and Mrs Casey’s complaint of sex discrimination did not arise out of circumstances that had been the same or even materially similar.

53. However the Tribunal concluded that the analysis required in the assessment of a sex discrimination case was so highly complex that the Tribunal could not conclude that in bringing or conducting his sex discrimination claim where there had been at the very least a difference in the treatment between the claimant and his comparator that the claimant’s claim could be described as being misconceived.

54. The Tribunal also rejected Mr Ferrity’s suggestion that the claimant was misconceived in bringing or conducting his claim of sex discrimination by failing to take into account of the fact that both his complaint of sex discrimination and Mrs Casey’s complaint of sex discrimination had been investigated within the respondent company by a panel made up of both men and women. While it is understandable and even laudable that the respondent company should seek to ensure its investigation panels are designed to militate against any form of discrimination nevertheless it cannot be said that the existence of a mixed gender panel should negate the possibility of discrimination in the conduct of that panels’ investigation.

55. Further the Tribunal rejected Mr Ferrity’s submission that the bringing or conducting of his sex discrimination claim was misconceived by the claimant on the basis that it was not sufficient for the claimant to conclude that Mrs Casey had been more favourably treated under the respondent company’s Dignity at Work policy than he had been simply because she had been successful and he had not.

56. In this regard the Tribunal accepted Mrs Mallon’s submission that the claimant’s sex discrimination case had not been focussed on outcome alone. Mrs Mallon stressed that the thrust of the claimant’s claim was that the difference in treatment between the claimant and Mrs Casey under the respondent company’s Dignity at Work policy has disadvantaged the claimant in such a way that it led to his being unsuccessful. Mrs Mallon stressed that it was the fact that the Dignity at Work policy had been applied properly to Mrs Casey that had not put her at the same disadvantage thus ensuring her successful outcome.

57. The Tribunal fully accepted the propriety of the respondent company writing to the claimant and Mrs Mallon to put them on notice in relation to costs and did not accept Mrs Mallon’s submission that this was a tactic devised to deter them from proceeding with the claim. However, the Tribunal did accept that this letter may have been perceived by the claimant and Mrs Mallon as such a device and that in the event the Tribunal did not regard it as unreasonable for them to continue in spite of this letter. In reaching this conclusion the Tribunal took into account the fact that the claimant and Mrs Mallon contacted a solicitor on receipt of this costs letter from the respondent company and received some assurance to this effect.

58. The Tribunal fully accepted that there did come a point during the course of the hearing when Mrs Mallon in particular must have realised the unlikelihood of the claimant’s sex discrimination claim succeeding. In this regard the Tribunal noted Mrs Mallon’s comment that she had not realised that she could withdraw “bits of the case”. The Tribunal accepted this and concluded that continuing with the sex discrimination case at that stage added no significant addition to the time spent in running the case.

59. Unfair Dismissal – (a) For sexual harassment and (b) for falsification of application forms.

The Tribunal did not accept that the claimant was misconceived in bringing or conducting a claim in relation to the sexual harassment charge on the basis that the claimant knew all along what he had done. The Tribunal accepts that Mr Ferrity based his application on this point on the Tribunal’s findings which did not uphold any of the claimant’s evidence in relation to the sexual harassment claim. However, the Tribunal noted that although Mrs Mallon and the claimant accepted the Tribunal’s decision nevertheless the claimant continued to deny the charge or the finding that he sexually harassed Mrs Casey.

60. The Tribunal did not accept that a claimant could be held responsible for a misconception of bringing or conducting a case simply on the basis that the Tribunal had not accepted his evidence. The Tribunal accepted that the claimant proffered a number of suggestions as to why Mrs Casey had brought a complaint of sexual harassment against him and fully accepted that the Tribunal had accepted none of these explanations. However, it is not imperative for the success of a sex discrimination case that an alleged perpetrator must establish the motivation for the charge brought against him.

61. The Tribunal did not accept that the preparation for hearing or self examination by the claimant as suggested by Mr Ferrity that is “this (bringing or conducting a sexual harassment claim) looks bad for me” would necessarily have led him to the conclusion that Mr Ferrity suggests. Parties without the benefit of legal representation tend to approach the Tribunal convinced their own views of their case and of their own truths and of their own belief in that case.

62. The Tribunal did not accept that the claimant or Mrs Mallon’s preparation for the Tribunal could have easily brought them to an understanding that the Tribunal may have found on analysis that the respondent company’s disciplinary and dismissal processes were wrong but ultimately reasonable. While in Mr Ferrity’s words the first analysis of his claim by the claimant may not have been “a sophisticated exercise”, that is ”this looks bad for me”, certainly the second analysis of how the law of unfair dismissal actually works is quite sophisticated and unreasonable, in the Tribunal’s view, to expect of this claimant who was not legally or even objectively represented.

63. Accordingly the Tribunal did not find that the claimant was either misconceived in the bringing or conducting of his unfair dismissal in relation to the sexual harassment complaint against him nor was he unreasonable in doing so.

Unfair Dismissal – Falsification of Application Forms

64. There were two aspects to the claimant’s having falsified his application forms. One was that he had enhanced his qualifications in order to secure the clerical job and the removal from his employment history of his period of employment with Belfast City Council.

65. The Tribunal acknowledged Mrs Mallon’s concession that of all the claims brought by the claimant the claim for unfair dismissal on the basis of falsification of the application forms was the one on which the claimant was most vulnerable for costs. Although Mrs Mallon didn’t specify the basis for her belief in this regard the Tribunal concluded that the claimant had deliberately falsified his application forms in respect of his qualifications and of his employment history specifically to benefit his promotion within Translink.

66. It appeared to the Tribunal as being quite clear that the claimant had falsified his qualifications in order to secure the clerical post he was promoted to that required the GCSEs the claimant did not have. The claimant without doubt enhanced his qualifications on the application forms in order to secure this post. It was also clear to the Tribunal that the claimant was in certain possession of this fact before the claimant took a claim of unfair dismissal against the respondent company in this regard. Therefore it appeared to the Tribunal that in bringing a claim of unfair dismissal for the falsification of his application form was both misconceived and unreasonable.

67. In relation to the removal from his employment history of his period of employment with Belfast City Council the Tribunal also noted that the claimant did this entirely to his own benefit and to conceal from Translink the fact that the claimant had been dismissed from Belfast City Council for any reason. However the Tribunal noted that this “airbrushing” of the claimant’s employment history had occurred at a date long before Mrs Casey brought her sexual harassment complaint against the claimant. Therefore it could not be said that the claimant had falsified his employment history to prevent Translink from discovering that he had been sacked for “previous sexual harassment – like behaviour”.

68. The Tribunal concluded that the only basis upon which an application for costs might be made against claimant was that the claimant was fully aware that his unfair dismissal claim on the basis of falsifying his application forms in relation to the enhancement of his qualifications was unfounded. This had been one of the Tribunal’s findings of fact after an analysis of all the evidence. However the Tribunal was reluctant to make an order in the circumstances where one parties’ evidence was not upheld by the Tribunal, without more.

69. The Tribunal was more concerned about the fact that the claimant and his representative had consistently lied to the Tribunal under oath about the circumstances in which his employment history had been altered on his application forms. In the first instance the claimant stated that he had overlooked his employment history with Belfast City Council. Then the Tribunal was advised by Mrs Mallon that she had deliberately left out the claimant’s period of employment with Belfast City Council and that the claimant had not been aware of the omission and was angry with her when he became aware that she had done this.

70. The Tribunal did not accept this evidence in its totality. The Tribunal accepted that Mrs Mallon may well have been the person to type up the application form and leave out of it the claimant’s employment history with Belfast City Council. However the Tribunal did not accept that this had been done either without Mr Mallon’s knowledge or without his agreement. The Tribunal concluded that Mrs Mallon’s evidence that she had been the one to lie about omitting the claimant’s employment history with Belfast City Council was itself a lie – and a lie that was perpetuated by the claimant.

71. The Tribunal reminded itself of its obligations to apply its discretion on whether or not it would award costs judiciously – that is equitably and fairly. Having concluded that a costs order might be made against the claimant on the basis that it was unreasonable to bring and conduct a claim of unfair dismissal for the falsification of his application form in relation to his qualification, the Tribunal decided that it would not award costs in this instance. The Tribunal reached this conclusion on the basis that it was satisfied that the balance of hardship as between the parties was not the greater towards the respondents in that this claim was only one amongst other claims that were not misconceived or unreasonable.

Chairman:

Date and place of hearing: 28 July 2008, Belfast

Date decision recorded in register and issued to parties: