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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Orr v Movilla House Limited [2012] NIIT 01492_11IT (6 November 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/1492_11IT.html
Cite as: [2012] NIIT 01492_11IT, [2012] NIIT 1492_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1492/11
CLAIMANT: Angela Orr
RESPONDENT: Movilla House Limited
DECISION ON COSTS
The decision of the tribunal is that the application for costs is refused.
Constitution of Tribunal:
Chairman: Mrs Ó Murray
Members: Mrs T Hughes
Mr J Welsh
Appearances:
The claimant did not appear and was not represented.
The respondent was represented by Mr N Phillips, Barrister-at-Law, instructed by Worthingtons Solicitors.
1. The claimant’s claims of disability discrimination and unfair dismissal were dismissed in a decision promulgated on 27 July 2012 following a three-day hearing from 11-13 June 2012.
2. The respondent by letter dated 15 August 2012 applied for the full costs of defending the claim on the grounds that the claimant had acted unreasonably in bringing or conducting the proceedings and that the proceedings were misconceived.
3. The costs claimed amounted to £16,156.35 to include counsel’s fee.
4. The tribunal was referred to four letters dated 27 November 2011, 1 February 2012, 30 March 2012 and 2 May 2012, all of which exhorted the claimant to withdraw her claim and they warned that a costs application would be made in the event of her losing her claim. The first two letters were sent to the claimant’s then solicitors and the second two letters were sent to the claimant following the withdrawal of her solicitors.
5. The following principles derived from the case law and from Harvey Division P1 at paragraphs 1026 onwards, are relevant to this case:
(1) 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 unreasonably. 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 [2007] EWCA Civ 1342).
(2) Costs Orders are exceptional in nature in the tribunals where costs do not normally follow the event as in the Civil Courts. (See Gee v Shell UK Ltd [2003] IRLR 82).
(3) An Order for Costs must be compensatory and not punitive.
(4) 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 [2008] 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.”
(5) In our view, the following observation is very important to bear in mind in this case:-
“The ordinary experience of life frequently teaches us that what is plain for all to see once the dust of battle has subsided is far from clear to the combatants once they took up arms.” (Per Sir Hugh Griffin in E T Marler Ltd v Robertson [1974] ICR 72.”
6. Mr Phillips submissions on behalf of the respondent can be summarised as follows:
(1) The respondent set out clearly its view of the weakness of the claimant’s case in the four letters sent to her and her former solicitors.
(2) The claimant admitted in cross-examination that, if the allegation had been proven against her, it amounted to asking another member of staff to falsify records, was therefore a very serious matter and would have warranted summary dismissal for gross misconduct.
(3) The disability discrimination claim had no merit.
(4) The claimant raised the issue of a poor relationship between her and another member of staff, for the first time during the hearing and that this should not be taken into account in assessing whether she was liable for costs for persisting with the claim in the light of the warning letters which had been sent to her.
(5) The claimant had had the relevant documents from an early stage in the process and was fully aware of the strength of the case against her.
7. The claimant was suspicious that her disability had a bearing on the decision to dismiss her as an OHS report which recommended reasonable adjustments was received by the respondent on the same day that the decision was taken to dismiss her. In these circumstances we do not regard it as unreasonable for the claimant to persist with a case of unfair dismissal which she suspected was tainted by her employer unjustifiably taking account of her disability in reaching the decision to dismiss. The two claims of unfair dismissal and disability discrimination were bound up together. The fact that we accepted the evidence of the respondent that the person making the decision to dismiss did not have sight of the OHS letter which was sent to another member of staff, does not mean that it was unreasonable for the claimant to have had that tested at tribunal.
8. Whilst the effect of the Rogan decision is that it can be difficult for a claimant dismissed for misconduct to show that the decision was outside the band of reasonable responses for a reasonable employer, it is by no means the case that it is inevitable that a tribunal will find that a misconduct dismissal is in all circumstances fair. This is particularly the case where there is an allegation that discrimination may have played a part in the decision to dismiss albeit that a claimant admits that the misconduct occurred.
9. For the reasons above we do not accept that the claimant’s claims were misconceived nor do we accept that the pursuing of those claims amounted to unreasonable conduct in the circumstances of this case.
10. In reaching that conclusion we also take account of the following factors: firstly, that the claimant was unrepresented for several months before the claim came to hearing and, secondly, that the respondent at no stage applied for a deposit hearing.
11. Even if the behaviour had met the threshold of unreasonable behaviour we would not have found it appropriate in this case to award costs. The claimant appeared genuinely to believe that her disability played some part in the decision to dismiss albeit that she could have been found guilty of misconduct. There was no suggestion that she had any disciplinary record and she was a relatively long-serving employee having worked for the respondent for approximately six years.
12. In view of our decision to decline to exercise our discretion to award costs, we do not need to assess the claimant’s ability to pay nor do we need to assess the reasonableness of otherwise of the bill of costs presented.
Chairman:
Date and place of hearing: 6 November 2012, Belfast.
Date decision recorded in register and issued to parties: