Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 310/08

CLAIMANT: David Moffett

RESPONDENTS: 1. Police Service of Northern Ireland

2. Paul Douglas

DECISION

The unanimous decision of the tribunal is that:-

(1) The claimant's claim of unfair dismissal is dismissed following withdrawal of the said claim by the claimant orally at hearing before the tribunal.

(2) The claimant is ordered to pay to the respondents the sum of £881.25 (inclusive of Value Added Tax) in respect of costs.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr J Lyttle

Mr A Crawford

Appearances:

The claimant appeared in person and was unrepresented.

The respondents were represented by Ms N Murnaghan, Barrister-at-Law, instructed by Crown Solicitor's Office.

Reasons

1. The claimant, having sought the assistance of a representative of the Labour Relations Agency, orally withdrew his claim of unfair dismissal at hearing before the tribunal, the subject-matter of his claim; and the said claim was therefore dismissed by the tribunal, following the said withdrawal.
2. Following the said withdrawal and dismissal of the claimant's claim, the respondents made an application for an Order for Costs, pursuant to Rule 38 and 40(3) of the Industrial Tribunals Rules of Procedure 2005 contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (Rules of Procedure). Rule 38 of the Rules of Procedure gives the tribunal a discretion to make an Order for Costs in certain circumstances, as set out in Rule 40(3) of the Rules of Procedure – namely, where a party has in conducting the proceedings acted vexatiously, abusively or otherwise unreasonably; and where the bringing and conducting of the proceedings has been misconceived, which is defined in the Regulations to include 'having no reasonable prospect of success'.
3. There was no dispute that at all material times the claimant was a Police Officer in the first-named respondent. As appears from the claim of unfair dismissal, as set out in his claim form, his claim related, in particular, to a dispute that the claimant had with the respondents, in relation to a transfer during the course of his service with the first-named respondent.

In the response form of the respondents, the respondents disputed the claimant had been dismissed as his service had not been terminated; and further, even if his service had not been terminated, which was denied, the respondents contended that the claimant, as a Police Officer, was unable to bring a claim of unfair dismissal by reason of the provisions of Article 243 of the Employment Rights (Northern Ireland) Order 1996.

A copy of the response form, which was accepted by the tribunal, was sent by the tribunal to the claimant by letter dated 20 May 2008. The claimant contended at the hearing that, prior to the hearing, he had not received the said letter nor at any time a copy of the response form. The tribunal found this difficult to accept; but noted, however, that all other relevant documents/correspondence, including other correspondence from the tribunal, were contained in the claimant's bundle of documents which he had prepared for the purposes of this hearing. In view of the tribunal's decision, as set out above, in relation to this application for costs, it was not necessary for the tribunal to resolve whether or not, in fact, the claimant had obtained a copy of the response form, prior to this hearing.

4. Since the claimant accepted that at all material times he was not dismissed by the respondents, the tribunal found it difficult to understand, in these circumstances, how the claimant expected to establish a claim for unfair dismissal arising out of any alleged transfer, regardless of the provisions of Article 243 of the 1996 Order. Article 243 of the 1996 Order prevents a police officer, such as the claimant, from the right to bring a claim of unfair dismissal. However, the tribunal was conscious that the claimant was not legally represented and apparently did not have the benefit of any assistance from the Police Federation, albeit he was a member; nor had he felt able to seek any such assistance because he believed the Federation had a potential conflict of interest. In addition, as stated in the case of ET Marler v Robertson [1974] ICR 72:-

"Ordinary experience in life frequently teaches us that which is plain for all to see once the dust of battle has subsided was far from clear to the contestants when they took up arms."

As Sedley LJ in Scott v Commissioners for Inland Revenue [2004] IRLR 713 stated:-

"A party can be misconceived in bringing proceedings, even if they believed they had a claim, as the test is not whether the party against whom costs were sought believed they were in the right, but whether they had reasonable grounds for believing they were in the right."

5. A Case Management Discussion was held on 24 July 2008 in relation to an adjournment application of this matter, which was granted. Ms Murnaghan submitted to the tribunal that, in the course of the Case Management Discussion, the issues relating to the difficulties facing the claimant in bringing his claim, as referred to above, were raised. This the claimant denied; but since there was no reference in the Record of Proceedings, and Ms Murnaghan did not call any evidence in relation to what had taken place at the Case Management Discussion, the tribunal is not in a position to be satisfied that, at the date of the Case Management Discussion, the claimant, as Ms Murnaghan submitted, could have been in no doubt that to proceed with the claim was misconceived and/or to continue with the proceedings was unreasonable.

However, whatever may have been the position prior to 19 August 2008, the tribunal is satisfied that the claimant can have been in no doubt, following receipt of a letter from the respondents' representatives dated 19 August 2008, in relation to the difficulties he faced in continuing his proceedings.

In the said letter the respondents' representatives stated, inter alia:-

" … The respondents are firmly of the view that there is no merit in your claim and I write formally to put you on notice that in the event that the tribunal accept the respondents' case and dismiss your claim an application in respect of costs will be made. I therefore would invite you to withdraw your claim.

In the interest of resolving the issues between you and the respondents I can advise that my clients are prepared to enter into mediation to resolve all or any of the outstanding issues that you perceive exist between you. To that end I would be obliged if you would respond to my correspondence indicating your views in relation to both my requests that the claim will be withdrawn and secondly that mediation is an appropriate way to deal with the matter."

In a letter dated 22 August 2008 the claimant made it clear, despite the contents of the letter dated 19 August 2008, that he was going to proceed to a hearing on 1 September 2008. At this time, there was no doubt the claimant continued to be in the service of the first-named respondent, having returned to work in July 2008, following a lengthy period of sick leave.

6. The tribunal was satisfied that, at the time of the receipt of the letter dated 19 August 2008, the claimant fully understood that he had not been dismissed, which, as he acknowledged, is an essential ingredient of any claim for unfair dismissal. Despite the contents of the letter dated 19 August 2008, he was not prepared to withdraw his claim and accept the offer of mediation set out in the said letter by the respondents' representatives. It appeared from the submissions made by both the claimant and the respondents' representatives, that prior to receipt of that letter dated 19 August 2008, there had been some misunderstanding between the parties as to whether the respondents were willing to enter into mediation with the claimant. The tribunal is satisfied that, whatever may have been the earlier misunderstanding, that the letter dated 19 August 2008 confirmed the willingness of the respondents to enter into mediation, which he refused; and, in such circumstances, the claimant acted otherwise unreasonably in continuing to proceed with his claim and further decided he would continue to conduct proceedings, which were misconceived.

As a consequence of the claimant continuing to proceed with his claim, the respondents' representatives were required to consult with their witnesses on 28 August 2008. Further, by letter dated 28 August 2008 the respondents' representatives wrote to the tribunal in the following terms:-

"I write on behalf of the respondents to the above matter which is listed for full hearing on Monday 1 September 2008 in respect of the claimant's claim of constructive dismissal. During a consultation with counsel this afternoon the respondents' witnesses advised that not only had the claimant never been dismissed, but that he had returned to work on 16 July 2008, following approximately six months of sick leave. It further transpires that the claimant has approached a number of PSNI personnel and requested that they attend the hearing as his witnesses in this matter.

Given that there quite clearly can be no argument that the claimant has been subject to a dismissal of any type, it appears to be contrary to the tribunal's overriding objective of expeditiously disposing of cases in a fair and proportionate manner, to permit this case to remain in the list for hearing on 1 September 2008.

In all the circumstances, the respondent respectfully submits that the claimant should be invited to withdraw his application forthwith, failing which he should be advised of the possibility of further sanction should his insistence on pursuing what is clearly an unarguable case be deemed to be unreasonable.

In all of the circumstances, it is the respondent's view that the claimant's application is so patently misconceived that to proceed to hearing would be vexatious, abusive, or otherwise unreasonable and in consequence of this, the respondent should be entitled to a Costs Order, should the claimant not advise of his intention to withdraw the application forthwith."

This letter was copied to the claimant by the respondents' representatives and by the tribunal. The claimant received the letter during the weekend immediately prior to the hearing. However, despite the contents of the letter, he arrived at the hearing, accompanied by some witnesses. In particular, he made it clear, to the tribunal, at the commencement of the hearing, that he wished to proceed with his claim. The claimant only withdrew his claim after he was encouraged by the tribunal to obtain, if he wished, the assistance of a representative of the Labour Relations Agency, as referred to previously, before he proceeded further with his claim.

In the circumstances, the tribunal was satisfied that from the receipt of the letter dated 19 August 2008 the claimant, albeit unrepresented, had acted otherwise unreasonably in continuing to proceed with his claim to the tribunal and/or his conduct of the proceedings was misconceived.

Further, the tribunal is satisfied that the claimant, at all material times, was fully aware of the services of the Labour Relations Agency and, if he had wished, could have sought assistance of the Agency at any time, but, in particular, following receipt of the letter dated 19 August 2008; and should not have waited to be encouraged to seek assistance of the Agency by the tribunal, following the commencement of the hearing before the tribunal.

Although the tribunal was satisfied, as set out above, that the claimant had conducted the proceedings otherwise unreasonably and/or the conducting of the proceedings by the claimant was misconceived, from receipt of the letter dated 19 August 2008, the tribunal continues to have a discretion whether to make an Order for Costs in such circumstances (see further Criddle v Epcot Limited [UKEAT/0275/05]. It has further been pointed out by the Court of Appeal in Gee v Shell UK Limited [2003] IRLR 22 and in Lodwick v London Borough of Southwark [2004] IRLR 554 that an award of costs in the Employment Tribunal is rare/exceptional. In the case of Royal Mail Group PLC v Sharma [unreported February 22 2005], Burton J stated:-

"Insofar as there are references in cases, and indeed in the Court of Appeal, to the use of costs jurisdiction being rare, it is rare because it is, fortunately, infrequent that there is conduct which can be characterised as unreasonable."

(See further Salinas v Bear Stearns International Holdings and Chamberlain [2005] ICR 1117.)

7. In addition, under Rule 41(2) of the Rules of Procedure, the tribunal may have regard to the paying party's ability to pay when considering whether it shall make a Costs Order or how much that Order should be.

The claimant informed the tribunal, which the respondents' representatives fairly did not challenge, that he had an approximate nett income of £2,300.00 per month, with normal outgoings of £1,800.00 per month approximately.

The respondents' representatives sought costs in the sum of £3,638.00 (exclusive of Value Added Tax). In particular, the tribunal was satisfied that, in relation to the period since the receipt of the letter dated 19 August 2008, costs had been incurred by the respondents' representatives in the sum of approximately £1,500.00 (exclusive of Value Added Tax) in relation to the said consultation and their attendance at this hearing, and exclusive of any solicitor's retainer which the respondent's representative was entitled in relation to this case from representing the first-named respondent in such matters.

Although the tribunal was satisfied that the claimant had acted unreasonably and/or the conducting of the proceedings by the claimant had been misconceived, from receipt of the letter dated 19 August 2008, the tribunal, in its discretion, decided that it would make an award of costs in the sum of £881.25 (inclusive of Value Added Tax), as a contribution towards the costs incurred by the respondents during the said period. In doing so, the tribunal took into account the financial status of the claimant and his ability to pay any Order made by the tribunal, together with the 'exceptional' nature of the costs jurisdiction in tribunals; but the tribunal also had regard to the fact that the claimant, however late in the day, had decided to withdraw his claim and had not required the issues to be the subject of oral evidence and to be determined by the tribunal.

Chairman:

Date and place of hearing: 1 September 2008, Belfast

Date decision recorded in register and issued to parties: