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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKinney v Belfast Health & Social Care T... [2012] NIIT 02064_11IT (04 April 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/02064b_11IT.html
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2064/11
CLAIMANT: Martin McKinney
RESPONDENT: Belfast Health & Social Care Trust
DECISION ON COSTS
The tribunal does not consider it appropriate to exercise its discretion to make a costs order against the claimant in the circumstances of this case pursuant to Rules 40 (2) and (3) of the Industrial Tribunal Rules of Procedure, contained in Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, and dismisses the respondent’s application for a costs order.
Constitution of Tribunal:
Chairman (Sitting alone): Ms M Bell
Appearances:
The claimant was not in attendance. The claimant was represented by Ms Catherine Arkinson of NIPSA.
The respondent was represented by Ms Eadaoin Ward of the Directorate of Legal Services.
1. Following the hearing of this case on 6 December 2011, the tribunal’s decision that the claimant had not suffered an unlawful deduction from wages was issued to the parties on 18 January 2012.
2. By letter dated 3 February 2012 to the office of the tribunals, the respondent sought costs against the claimant for its costs arising from 29 November 2011 onwards, amounting to £1,035 including VAT.
3. By email on 8 February 2012 the claimant’s representative contested the application for costs.
4. A costs hearing was listed for 6 March 2012.
THE ISSUES
5. The issues before the tribunal for consideration were:
(i) Pursuant to Rule 40 (3) of the Industrial Tribunal Rules of Procedure contained in Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, is the tribunal of the opinion that:
- The claimant 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 claimant has been misconceived.
If so,
(ii) Does the tribunal consider it appropriate to exercise its discretion to make a costs order against the claimant in the circumstances pursuant to Rule 40(2) of the 2005 Rules?
If so,
(iii) What amount does the tribunal consider is appropriate to order the claimant to pay?
SUBMISSIONS
6. Ms Ward contended that her letter of 29 November 2011 to the claimant’s representative outlined the respondent’s views in relation to the merits of the case and intention to seek costs, that the tribunal’s decision clearly supports the view set out in her letter and that it should have been apparent to the claimant, at least on receipt of this letter, that an objective and sensible reflection would have indicated to him that he had little reasonable prospect of success, and as such, from then on, the continuing of the proceedings was both unreasonable and misconceived on the part of the Claimant. Costs arising from 29 November 2011 onwards only were sought.
7. Ms Arkinson resisted the respondent’s application on the basis that a large volume of similar cases had emerged in the Belfast trust and so it was decided to take the claimant’s case forward as a test case to seek clarification whether there was an implied onus upon the employer to provide an employee work, unless expressly stated otherwise in the contract of employment, when an employee is fit to return to work after illness. Clarification was sought in light of the common law position that an employee who is ready and willing to work is entitled to be paid wages and the case of Beveridge V KLM UK Ltd EAT/1044/99, referred to at hearing, where an employee was held entitled to pay for when she was fit to return to her job but her employer was responsible for delaying her return in the absence of an express contractual provision otherwise. Ms Arkinson confirmed that she is a lay representative in the Belfast trust and undertakes union duties within the trust and the claimant was one of a number of individuals who had come to her with similar cases and that he was guided by her in this matter. Ms Arkinson stated that she had carried out research and tried to identify some precedent case law to clarify the position without success, and on receipt of the respondent’s letter of 29 November 2011 she took ‘on board what was said’ and looked into the matter again with the claimant, but in the absence of a clear legal precedent she believed it was for the industrial tribunal to provide clear unequivocal guidance .In addition , the claimant had contacted the sick benefit office who put it to him that it would be fraudulent for him to claim statutory sick pay when fit for work. It was confirmed that no legal advice was sought, that this would not routinely be done, that the union is a not for profit organization, that it does not take cases to tribunal lightly and it would not as a normal matter of course indemnify the claimant if costs were awarded against him. Ms Arkinson confirmed that the claimant is in band 2 which is the lowest clerical grade with take home pay of just over £1000 per month.
THE LAW
1.
8. Rules 40(2) and (3) of the Industrial Tribunal Rules of Procedure, contained in Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, provide:-
‘40 (2) A tribunal or chairman shall consider making a costs order against a 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.
(3) 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.’
9. Reasonableness is a matter of fact for the tribunal.
10. The tribunal has a duty to consider making a costs order where a party’s conduct falls within the description set out under Rule 40 (3) but its decision whether then to make an award is discretionary and cannot be fettered by case law.
11. Under Regulation 2 of the 2005 Regulations the interpretation of ‘misconceived’ includes having no reasonable prospect of success.
12. How the amount of a costs order shall be determined is set out in Rule 41 of the Industrial Tribunal Rules of Procedure.
APPLYING THE LAW
13. The claimant it seems was guided from the outset of this case by the advice of his union and as put by Ms Ward appears to have been used as ‘a guinea pig’. The tribunal accepts that the claimant’s union representative genuinely believed that there was ambiguity over whether the claimant was entitled to be provided work when he became fit after being unwell, although not fit to return to his previous post due to its location and this was added to by advice apparently received that to continue to submit sick lines as per the respondent’s direction in the interim and receive SSP would be fraudulent. There is no suggestion before the tribunal that the claimant or his representative had acted in any way vexatiously, abusively or disruptively. Ms Ward submitted that on proper consideration of her letter of 29 November 2011 it should have been apparent that the proceedings were misconceived and to continue with them after that was unreasonable. The tribunal is persuaded that the claim had no reasonable prospect of success for the reasons as set out in Ms Ward’s correspondence and in its decision. Reasonableness is a question of fact for the tribunal and the tribunal considers that it should be determined by looking at conduct overall, which if found to have been unreasonable then costs might be awarded in respect of the period after the conduct became unreasonable. The tribunal finds that the claimant was still advised by his representative to proceed to hearing after receipt of Ms Ward’s letter and a review of the matter. The tribunal on consideration of the case overall is not satisfied that the claimant in bringing the proceedings, or he in conducting the proceedings, acted unreasonably. The tribunal is however persuaded that the claimant’s representative, in advising the continued pursuit of the claim after sensible and objective consideration of the letter of 29 November 2011, ought to have been aware that the claim had no reasonable prospect of success and as such that the claimant’s representative has in conducting the proceedings thereafter acted unreasonably.
14. The tribunal is persuaded that the claim had no reasonable prospect of success at any time of its existence for the reasons already referred to, however the proceedings were clearly being used by the claimant’s union as a test case and as such whilst it might be said that the bringing or conducting of the proceedings by the claimant’s union has been misconceived the tribunal is not persuaded as such that the bringing or conducting of the proceedings by the paying party, the claimant, has been misconceived.
15. The tribunal however does not consider that it would be appropriate to exercise its discretion to make an award of costs against the claimant in the circumstances of this case based on the unreasonable conduct of his representative, in particular, in light of the proximity of the respondent’s letter to the actual hearing date and limited time for objective and sensible reflection upon the contents, the use by the claimant’s representative of this case as a test case and advice to the claimant that he proceed ,and the claimant’s low pay grade.
CONCLUSION
16. The tribunal does not consider that it would be appropriate to exercise its discretion to award costs against the claimant in the circumstances of this case and dismisses the application for a costs order pursuant to Rules 40 (2) and (3) of the Industrial Tribunal Rules of Procedure, contained in Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, in favour of the respondent.
Chairman:
Date and place of hearing: 6 March 2012, Belfast.
Date decision recorded in register and issued to parties: