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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McColgan v Lloyds Pharmacy Ltd [2015] NIIT 2496_14IT (11 February 2015)
URL: http://www.bailii.org/nie/cases/NIIT/2015/2496_14IT.html
Cite as: [2015] NIIT 2496_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2496/14
CLAIMANT: John McColgan
RESPONDENT: Lloyds Pharmacy Ltd
DECISION ON A PRE HEARING REVIEW
The decision of the tribunal is that:-
(1) the claimant’s claim for a redundancy payment is out of time; and the claimant did not satisfy the relevant provisions set out in Article 199 of the Employment Rights (Northern Ireland) Order 1996 to enable the tribunal to extend time to enable it to determine the said claim;
(2) the claimant’s claim of unfair dismissal is out of time; and the tribunal decided it was reasonably practicable for the claimant to have presented this claim in time;
(3) the tribunal therefore does not have jurisdiction to consider and determine the claimant’s claim for redundancy payment and/or unfair dismissal and the said claims must be dismissed;
(4) the tribunal makes an Order for Costs to be paid by the claimant, in the sum of £100.00 (together with any Value Added Tax properly payable by the claimant to the respondent).
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Drennan QC
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by Gateley LLP, Solicitors.
Reasons
1.1 The claimant presented a claim to the tribunal on 28 October 2014 in which he made a claim for a redundancy payment and also a claim for unfair dismissal arising from the termination of his dismissal from the respondent. The respondent presented a response to the tribunal on 2 December 2014, in which it denied liability for the said claims and raised preliminary issues in relation to time and the jurisdiction of the tribunal to consider and determine the said claims.
1.2 In his claim form, the claimant stated that his employment started with the respondent on 1 May 2004 and ended on 15 April 2012. In the response form, the respondent agreed the said dates but elsewhere in the response form stated that the claimant was dismissed on 5 April 2012. At the commencement of the hearing, the respondent’s representative agreed, for the purposes of determining the preliminary issues, the subject matter of this pre-hearing review, that it was agreed by the respondent that the termination of the claimant’s employment was 15 April 2012. He further submitted, if the tribunal was to find that the tribunal had jurisdiction to consider and determine either of the claimant’s claims, then this issue might still require to be determined at any substantive hearing. In any event, I am satisfied, in the circumstances of this case, the difference between the claimant and the respondent in relation to the above dates is not relevant for the purposes of determining this pre-hearing review and also in any event is unlikely to be of any material relevance at any substantive hearing.
1.3 At a Case Management Discussion on 18 December 2014, as set out in the record of proceedings dated 18 December 2014, the Vice President directed that this matter should be listed for a pre-hearing review to determine the following issue:-
“Whether or not the claims are within time and, if they are not within time, whether that time limit should be extended?”
2.1 In relation to the claimant’s claim for a redundancy payment, pursuant to Article 198 of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order), it is, provided, in Article 199, insofar as relevant and material to the termination of the preliminary issues in this matter, as follows:-
Article 199
“(1) An employee does not have any right to a redundancy payment unless, before the end of period of six months beginning with the relevant date –
(a) The payment has been agreed and paid,
(b) The employee has made a claim for the payment by notice in writing given to the employer,
(c) A question as to the employee’s right to, or the amount of, the payment has been referred to an Industrial Tribunal, or
(d) A complaint relating to a dismissal has been presented by the employee under Article 145,
(2) An employee is not deprived of his right to a redundancy payment by paragraph (1) if, during the period of six months immediately following the period mentioned in that paragraph, the employee –
(a) makes a claim for the payment by notice in writing given to the employer ,
(b) refers to an industrial tribunal a question as to his right to, or the amount of, the payment or
(c) presents a complaint relating to his dismissal under Article 145,
and it appears to the tribunal to be just and equitable that the employee should receive the redundancy payment.
(f) In determining under Paragraph (2) whether it is just and equitable that an employee should receive a redundancy payment an industrial tribunal shall regard to –
(a) The reason shown by the employee for his failure to take any such step as is referred to in paragraph (2) within the period mentioned in paragraph (1), and
(b) All the other relevant circumstances.”
2.2 In relation to the claimant’s claim of unfair dismissal, insofar as relevant and material to the determination of the preliminary issue in this matter, it is provided under the 1996 Order:-
Article 145
“(2) subject to paragraph (3), an Industrial Tribunal shall not consider a complaint under this Article unless it is presented to the tribunal –
(a) before the end of the period of three months beginning with the effective date of termination, or
(b) within such a further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”
3.1 The claimant fairly and properly, during the course of his evidence to the tribunal accepted that, in relation to his claim for a redundancy payment, he had not, before the end of the period of six months beginning with the date of termination of his employment, satisfied any of the relevant provisions of Article 199(1) of the 1996 Order and, further, in the following period of six months, he had not satisfied any of the matters set out in Article 199(2) of the 1996 Order. In such circumstances, it was not therefore possible for the tribunal to consider whether it was just and equitable that the claimant should receive a redundancy payment, as referred to in Article 199(2) of the 1996 Order. In these circumstances, the claimant’s claim for redundancy payment is out of time. Further, the tribunal had no power to extend that time in the circumstances and it therefore does not have jurisdiction to consider and determine the claimant’s claim for redundancy payment. This claim must therefore be dismissed.
3.2 Further, the claimant did not dispute that his claim of unfair dismissal is also out of time and indeed, he fairly and properly recognised that the main issue for the tribunal to determine at this pre-hearing review was whether time could be extended by the tribunal in relation to its claim for unfair dismissal, pursuant to the provisions of Article 145(2) of the 1996 Order, as referred to previously. The claimant gave oral evidence to the tribunal, the respondent did not call any evidence and both the claimant and the respondent’s representative, at the conclusion of the hearing, made oral submissions to the tribunal.
4.1 The statutory test under Article 145(2) of the 1996 Order involves two distinct questions:-
“(a) Was it reasonably practicable to present the complaint in time?
(b) If it was not, did the claimant bring the complaint within a further reasonable period?”
It has long been established it is for the claimant to prove that it was not reasonably practicable to bring the claim in time and it is a question of fact for the tribunal to decide. In this context, it always has to be remembered that the test for an extension of time, which applies under the discrimination legislation, potentially affords the tribunal a far wider discretion than in the test set out in the provisions under the 1996 Order in relation to a claim for unfair dismissal. (See further Hutchison v Westward Television Limited [1977] IRLR 69 and British Coal Corporation v Keeble [1997] IRLR 336). Under discrimination legislation, the test of ‘just and equitable’ applies. Indeed, if the tribunal had been in the position, in relation to the claimant’s claim for a redundancy payment, to consider further the provisions of Article 199(2) of the 1996 Order (see above) the test of ‘just and equitable’ would have had to be considered.
4.2 In considering term ‘reasonably practicable’, there has been considerable legal authority.
In Palmer and Saunders v Southend on Sea Borough Council [1984] IRLR 119, May LJ stated at paragraph 125:-
“To construe the words ‘reasonably practicable’ as the equivalent of “reasonable” is to take a view that is too favourable to the employee. On the other hand, ‘reasonably practicable’ means more than merely what is reasonably capable physically of being done.….
In the context in which the words are used in the 1978 Consolidation Act, however ineptly as we think, they mean something between the two. Perhaps to read the word ‘practicable’ as the equivalent of ‘feasible’ … and to ask colloquially and untrammeled by too much legal logic –‘was it reasonably feasible to present the complaint to the industrial tribunal within the relevant three months?’ – is the best approach to the correct application of the relevant sub-section.”
In Wall’s Meat Company Ltd v Khan [1979] ICR 52, Brandon LJ gave the following guidance:-
“The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits such performance. The impediment may be physical, for instance, the onus of the complainant or postal strike; or the impediment may be mental, namely state of mind of the complainant in the form of ignorance of, or mistaken belief, with regard to essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present the complaint within a period of three months, if the ignorance on the one hand or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.”
Harvey on Industrial Relations and Employment Law, Volume 3, Section P1 has emphasised:-
“(207) So, whilst a claimant’s state of mind has to be taken into account, it is clear that his mere assertion of ignorance either as to the right to claim, the time limit or the procedure for making the claim is not to be treated as conclusive .... Moreover, as the Courts have pointed out, the widespread public knowledge of unfair dismissal rights, is all the time becoming more difficult for an employee to plead such ignorance successfully ...
(208) If an employee is reasonably ignorant of the right to claim, it would inevitably follow that he would be unaware either of the correct mode of making a claim or the time within which it should be made. But if he knows in general about the availability of the remedy, he may be still ignorant of how and when to pursue it. In these circumstances, as Brandon LJ noted in the Wall’s Meat case, it would be difficult for him to satisfy a tribunal that he had behaved reasonably in not making suitable inquiries about these matters. Shaw LJ, in the same case, commented that “mere ignorance” of the time limit will not of itself amount to reasonable impracticability, save perhaps where the employee does not discover the existence of his right until a short time before the expiry of the time limit. Waller LJ took a similar view in Riley v Tesco Stores [1980] ICR 233 at 335.”
On the facts of this case, it was apparent (see later) the major issue upon which the claimant relied was that his adviser had been at fault. In Harvey on Industrial Relations and Employment Law, Volume 3, Section P1 it is stated, in so far as relevant and material as follows:-
“(214) The issue here is whether a claimant is debarred from showing reasonable impracticability where it was not he, but his advisers, who were at fault. They may have misled him about the right to claim, or about the time limit, or about the method of making a claim, as a result of which he did not present his claim in time. Is their fault to be attributed to him, so as to prevent him from arguing that it was not reasonably practicable for him to present his claim in time? As will be seen below, the answer will primarily depend on the nature of the adviser who has given the advice.
(215)-(223) If a professional adviser, such as a solicitor, has been instructed by the claimant to advise or act for him, then any wrongful or negligent advice or conduct on his part which results in the time limit being missed will be attributed to the claimant with the result that he will ordinarily not be able to rely on the escape clause. In Dedman v British Building and Engineering Appliances Ltd [1974] 1 All ER 520 at 526, Lord Denning MR stated:
''If a man engages skilled advisers to act for him — and they mistake the time limit and present the complaint too late — he is out. His remedy is against them.''
This principle was repeated in Wall’s Meat case. Over the years, there has been some criticism of what has become known as the ‘Dedman principle’. (See further Riley v Tesco Stores Ltd [1980] IRLR 103 and London International College v Sen [1993] IRLR 333).
However, as stated in Paragraph 227 of Harvey any doubts about the status of Dedman, in the light of Riley and Sen were removed by the decision of the Court of Appeal in Marks & Spencer plc v Williams-Ryan [2005] IRLR 562, where Lord Phillips MR, having reviewed the authorities, upheld the Dedman principle as a proposition of law:
“In Dedman the employee had retained his solicitor to act for him and failed to meet the time limit because of the solicitor's negligence. In such circumstances it is clear that the adviser's fault will defeat any attempt to argue that it was not reasonably practicable to make a timely complaint to an employment tribunal ......''
(228) As in Riley, the question in Williams-Ryan was whether a claimant could rely on the escape clause where she had received advice from a CAB. Holding that there was no binding authority equating advice from a CAB with advice from a solicitor, Lord Phillips MR stated:
''I would hesitate to say that an employee can never pray in aid the fact that he was misled by advice from someone at a CAB. It seems to me that this may well depend on who it was who gave the advice and in what circumstances. Certainly, the mere fact of seeking advice from a CAB cannot, as a matter of law, rule out the possibility of demonstrating that it was not reasonably practicable to make a timely application to an employment tribunal.''
Although the Court of Appeal rejected the argument that fault on the part of a CAB must necessarily be treated as the fault of the employee, this was not a case where specific misleading advice was given by the CAB .....
(229) However, more recent authority has suggested that the reassertion of the Dedman principle by the Court of Appeal in Williams –v- Ryan does not mean that there must inexorably be a finding of reasonably practicability in every case where a claimant instructs solicitors and receives wrong advice. In Riley Waller LJ pointed out that there may be circumstances where there are special reasons why the solicitor’s failure can be explained as being reasonable (1980) IRLR103 and in Northamptonshire County Council v Entwhistle [2010] IRLR 740 Underhill J, as he then was, gave an example of such circumstances. The situation “where both the claimant and the advisor had been misled as to some material factor matter (for example something bearing on the date of dismissal, which is not always straightforward”. In that case, he held it would be open to the claimant to argue that the escape clause should apply, but if the solicitor was negligent, such an argument would not be possible as the solicitor would not have given him the advice that he “should reasonably in all the circumstances have given him ....
(230) Where it is established that the adviser’s fault should be attributed to the claimant, neither the extent to which the claimant relied upon that advice, but the quality of it, will be regarded as a relevant special reason justifying a finding of reasonable impracticability (Creden Health Authority v Jaufurally [1986] ICR 4).”
In the case of Ashcroft v Haberdashers’ Aske’s Boys’ School [2008] IRLR 375, in a case which related to provisions relating to the extension of time in dismissal cases, which have subsequently been repealed, and is not necessarily still good authority, it is however of interest to note that Burton J, in the case where the claimant relied on certain advice from a person who purported to be a solicitor but was not, to handle the case for him and had assumed that a claim form had been issued, stated in the course of his judgment that the principle that lies behind the Dedman line of authorities is not dependent on the adviser in question being a solicitor, it is indeed not even dependent on his being skilled and the fact that this particular person was not a solicitor would have had no relevance to the ultimate result.
5.1 Having heard the evidence of the claimant and the oral submissions of the claimant and the respondent’s representative, in so far as relevant and material to the determination of the preliminary issues in this matter, I made the following findings of fact, as set out in the following sub-paragraphs.
5.2 Following the termination of the claimant’s employment on 15 April 2012 the claimant promptly approached for advice and assistance, the local resource centre near his home, namely Rosemount Resource Centre (‘Rosemount’). He was told by Rosemount that they had a person working at Rosemount who was a solicitor, namely AB. An urgent appointment was arranged with AB who confirmed to the claimant that he was a solicitor at a meeting held with the claimant at Rosemount. AB took from the claimant all the documents in his possession, including all correspondence he had had with the respondent, together with notes he had taken of his conversations with various managers of the respondent. Having taken the said documentation from the claimant AB informed the claimant that he would be writing to the respondent and would be lodging claims in the industrial tribunal for redundancy payment and/or unfair dismissal. The claimant had more than one meeting over the following few weeks with AB. During those meetings AB explained the procedure of bringing claims to the tribunal including the necessity to lodge with the tribunal a claim form within a three month period of termination of his employment. During the second or third meeting AB confirmed that he had lodged proceedings with the tribunal and he stated that he would now prepare the case for hearing. The claimant at no time saw a copy of his claim form which AB said that he had lodged with the tribunal nor was he shown copies of any correspondence between AB, on his behalf, and either the respondent or the tribunal. The claimant now accepts, with hindsight, that he was naive and should have asked to see copies of the claim form said to have been lodged on his behalf by AB and/or the relevant correspondence. However, the claimant believed that he was dealing with a solicitor and he was therefore content to leave the matter in his hands, as he believed that he was experienced in these matters.
5.3 Indeed, for the remainder of 2012, the claimant continued to have meetings with AB who repeatedly assured him that proceedings had been lodged with the tribunal and that he was preparing the case and was in touch with the respondent. Indeed, at one meeting during 2012, AB indicated to the claimant that he was having difficulty in obtaining the claimant’s personnel file from the respondent.
5.4 In fact, as shall become apparent elsewhere in this decision, AB at no time had lodged the claimant’s claims in the tribunal, nor had he been in contact with either the tribunal or the respondent.
5.5 In early 2013, the claimant made an appointment to see AB at Rosemount. He felt at that time, after some eight months, there should have been some developments in the claim that had been made, on his behalf, to the tribunal. When he visited Rosemount, he was informed that AB had been asked to leave the Centre. At that time he was given no further details. The claimant asked about the paperwork which AB had been given by the claimant and any other paperwork relating to his claim which AB had held. There then followed a period during 2013 when the claimant repeatedly tried to find out from Rosemount where was the paperwork relating to his claims. Rosemount initially suggested that AB had taken all the paperwork with him. As a result, the claimant then sought to find AB but was unable to do so. However, he did meet AB’s father, who informed him, inter alia, that his son did not hold the paperwork and the paperwork was at Rosemount. In or about late summer/autumn 2013, the claimant was handed by Rosemount a file, which it suggested was the paperwork relating to his claims. However, it turned out this paperwork related to somebody else. Eventually, in or about late 2013/early 2014, Rosemount confirmed that it did not have any paperwork relating to the claimant’s claims and suggested that, if there was any, it was in the possession of AB. I accept that, during this lengthy period, the claimant made various attempts to obtain his paperwork from Rosemount and/or AB’s father, but without success and, in essence, each was suggesting that the other had the relevant paperwork.
5.6 In or about late February/early March 2014 the claimant, who by this stage had realised that he was going to get no assistance from Rosemount or from AB’s father, went to the Citizen’s Advice Bureau and explained what had taken place, as set out in the previous sub paragraphs, following the termination of his employment. Interestingly, the advisor at the Citizen’s Advice Bureau, who was a solicitor, did not recognise the name of AB as a solicitor. In any event, the Citizen’s Advice Bureau sensibly contacted the tribunal and found out that, despite what the claimant had been told by AB, no claim had been lodged with the tribunal. The Citizen’s Advice Bureau confirmed to the claimant what he had been previously told by AB about the time limit for bringing claims to the tribunal. The claimant, not surprisingly was shocked to find out that no claim had been lodged by AB with the tribunal. He went to Rosemount and had a meeting with the manager of Rosemount, CD, in or about April/May 2014. During the course of that meeting the claimant was told that AB had been asked to leave Rosemount’s employment because of certain unacceptable conduct by AB during the course of his employment. He also told the claimant, although AB had a law degree, he was not a solicitor. The manager indicated that he would seek advice from another solicitor about what could be done in the circumstances; but it would appear that no further help or assistance was given to the claimant by Rosemount.
5.7 In or about late summer the claimant once again sought advice from the Citizen’s Advice Bureau, who again confirmed to the claimant the relevant time limits, including the circumstances in which time might be extended under the 1996 Order and how, if an application was made out of time, the tribunal would first consider whether time should be extended, before deciding whether it had jurisdiction to determine any claim made by the claim.
5.8 On 28 October 2014, the claimant decided, following the advice of the Citizen’s Advice Bureau to present his claim to the tribunal. The claimant emphasised, in evidence, the unfairness of the situation in which he found himself, due to the actions, in particular of AB but also Rosemount, from whom he had sought advice and assistance from shortly after the termination of his employment. However, the claimant was unable to satisfactorily explain why, in particular, having ascertained from the Citizen’s Advice Bureau in or about March 2014 that a claim had not been presented to the tribunal, it was not until 28 October 2014 that he actually presented a claim to the tribunal, even though he had been told by the Citizen’s Advice Bureau about the time limits and that, even if the claim was out of time, there was a provision in the 1996 Order for a tribunal to consider an extension of time in appropriate circumstances. The claimant in seeking to explain this delay relied on his upset and shock at discovering what in fact had taken place and the necessity for him to consider what to do in the circumstances. However, he was unable to explain satisfactorily why he had not given this matter the urgent consideration which was required, not least in circumstances where he was fully aware from his first meeting with AB of the three month time limit in order to bring a claim to the tribunal.
6.1 In light of the facts as found by the tribunal, as set out in the previous paragraph, and the relevant legislative provisions and legal authorities referred to previously, I came to the following conclusion. I have considerable sympathy for the claimant in that he was clearly misled by AB, when he suggested that he had lodged the claimant’s claim in time to the tribunal and he was in contact with the respondent and/or the tribunal and was preparing the claimant’s claim for hearing at the tribunal. It is clear that AB was not in fact a solicitor. However, it is equally clear that Rosemount were employing him to give skilled advice in relation to such matters. I have considerable concerns about the fact that the claimant, during the period of 2012, did not ask to see copies of the claim and the correspondence AB said he was having with the respondent and/or the tribunal. However, given that the claimant believed AB was a solicitor, I can accept, to some degree, that he did not, in those circumstances, ask more questions and insist upon seeing copies of the said documents, as he clearly had an element of trust in the actions of a member of the legal profession. However, it is more difficult to understand the claimant’s reluctance to ask more questions and in particular to contact the Tribunal Office when he was told that AB was no longer working for Rosemount and he was unable to obtain from either Rosemount or AB’s father copies of any documentation relating to his claims. But again, I suspect that, although there was clearly naivety on the claimant’s part, there still remained a degree of trust on the part of the claimant, as he had believed he was dealing with a solicitor, and he found it difficult to understand or indeed accept the possibility that his claim had not been lodged with the tribunal by such a person and that the only difficulty related to the apparent loss of his documentation. Not, without some considerable hesitation, I am prepared to accept, in the above circumstances, that it was not reasonably practicable to present his claim prior to in or about March 2014 when the claimant discovered that the claim had not been presented to the tribunal, when he visited the Citizen’s Advice Bureau for advice. In so deciding, I take into account the unique set of circumstances that occurred in this matter, when the claimant had been led to believe that AB was a solicitor working for Rosemount and had been told by him he had presented a claim to the tribunal in time. I am prepared to accept, that in these particular circumstances, the claimant was not only misled but, because of the trust which he had in a member of the legal profession, he had not asked the proper questions, which I believe he would have done earlier, if it had been anybody else other than a solicitor; and, in the particular facts of this case, this comes within the type of special reason, referred to in the cases of Riley and Entwhistle. These cases held that it is not always the case that a finding of reasonable practicability must be found by the tribunal where a claimant instructs a solicitor or, in this case, a person whom he believes to be a solicitor. However, it cannot be assumed that in every case where a person pretends to be a solicitor a tribunal will make the same decision, as set out above, in extending time until March 2014. Each case will depend on its own facts.
6.2 Although I was prepared in these circumstances to extend the time for bringing a claim to in or about March 2014, I could find no reason for extending the time beyond that date. At that time, the claimant was in possession of all relevant information. He knew of the relevant time limits and that a claim had not in fact been presented to the tribunal. However, it was not until 28 October 2014 that he presented his claim to the tribunal. The tribunal can only determine this matter on the basis of the evidence before it. There was no evidence of any physical impediment preventing the claimant bringing his claim from in or about March 2014 until 28 October 2014. Indeed, at that time, there was no evidence about the claimant’s state of mind in relation to his right to complain and/or the relevant time period or the procedure to be followed in order to bring such a claim in the industrial tribunals. Indeed, the matter was compounded by the fact that the claimant again sought advice from the Citizen’s Advice Bureau in late summer 2014 but, despite again receiving all relevant advice from the Citizen’s Advice Bureau about such matters, the claimant still did not bring his claim to the tribunal until 28 October 2014. There was nothing preventing the claimant bringing his claims from in or about March 2014.
7.1 In light of the foregoing, I was satisfied that it was reasonably practical for the claimant to bring his complaint to the tribunal from at least in or about March 2014. Since he failed to do so, the tribunal does not have jurisdiction to consider and determine the claimant’s claim of unfair dismissal and it must be dismissed.
8.1 At the conclusion of the hearing, the respondent’s representative made an application to the tribunal for an Order for Costs against the claimant, pursuant to Rule 40 of the Industrial Tribunals Rules of Procedure 2005, on the grounds that the claimant in conducting the proceedings had acted otherwise unreasonably or the bringing or conducting of the proceedings by the claimant had been misconceived (i.e. no reasonable prospect of success).
8.2 At the Case Management Discussion on 18 December 2014, as set out in the record of proceedings dated 18 December 2014, the Vice President, after explaining to the claimant of the provisions in relation to time limits for bringing claims and the legal test for extending that time limit, had stated to the claimant – “I was concerned that there may well be an application for costs in this case and that he should take advice before deciding to proceed further”. The respondent’s representative produced, at this hearing, a schedule of costs in the sum of £1,735 plus VAT. In the circumstances, I do not consider that these costs are unreasonable for the conduct of this pre-hearing review; but, in light of my decision as set out below, it is not necessary for me to consider this schedule in any detail.
8.3 Rule 40 of the Rules of Procedure, in so far as relevant and material provides:-
“ ...
(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.
....”
Rule 41 of the Rules of Procedure, in so far as relevant and material provides:-
“...
(2) The tribunal or chairman may have regard to the paying party’s ability to pay when considering whether it or he shall make a costs order or how much that order should be.
....”
Under Rule 40(2) and (3) of the Rules of Procedure, it has long been recognised that it is necessary for a tribunal when considering an application for costs under the said Rules of Procedure, to embark on a two stage process. Firstly, the tribunal has to consider whether it has been established that the relevant party has satisfied the terms of Rule 40(3) – for example, a finding of otherwise unreasonable conduct and/or bringing or conducting of proceedings has been misconceived. A tribunal then has to consider, secondly and separately, whether to exercise its discretion to make an Order for Costs (see further Criddle v Epcot Limited [UK EAT/0275/05]. Vaughan v London Borough of Lewisham & Others [2013] UK EAT/0533/12. Mummery LJ in Khan v Kirklees BC [2007] EWCA Civ 1342, in the course of his judgment, stated it was not possible to list exhaustively what all the circumstances at the second stage might be. However, he indicated (see Paragraph 8 of the judgment), potentially relevant considerations might include conduct, proportionality in the merits of the case and also whether a person is represented or unrepresented. However, he emphasised this was not an exhaustive list and each case would depend on its own particular facts.
Unlike the Rules, which normally apply to proceedings in, for example, the High Court/County Court, costs do not follow the event. In addition, the Rules of Procedure do not replicate the general rules, applicable in those courts, which provide, where a plaintiff discontinues proceedings, he is normally liable for the costs which a defendant has incurred before a notice of discontinuance is served on him. In the case of Lodwick v London Borough Southwark [2004] IRLR 554, a case of unfair dismissal/breach of contract, Lord Justice Pill made it clear, when considering whether an Order for Costs should be made under the said Rule:-
“To order costs in the employment tribunal is an exceptional course of action and the reason for, and the basis of, an order should be specified clearly; especially where a sum as substantial as £4,000 is involved.”
There is nothing in the Rules of Procedure which expressly states that an Order for Costs should be considered the ‘exception rather than the rule’. Certainly, however, that has been the view taken in relation to the exercise of the power under the said rule, which governs claims, such as unfair dismissal (see further the case of Gee v Shell UK Ltd [2003] IRLR 82.
8.4 However, I am satisfied, when exercising its discretion, the tribunal also has to have regard to the judgment of Girvan LJ in the case of Peifer –v- Castlederg High School and Western Education & Library & Another [2008] NICA 49, where he confirmed that a tribunal is required to give effect to the terms of the overriding objective, when it exercised any power given to it under the Rules of Procedure, which would include the power to order costs; and he stressed that these objectives were intended to be exactly what they were described as being, namely overriding objectives. Indeed, he went on to state that:-
“Tribunals should be encouraged to use their increased costs power as 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 cost falling on opponents.”
In a recent decision of the Court of Appeal in the case of Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255, Mummery LJ took the opportunity to review the authorities in relation to the issue of costs under the Rules of Procedure applying in the employment tribunals in Great Britain, which are in similar terms to the Industrial Tribunal Rules of Procedure applying in Northern Ireland. In particular, in the course of his judgement he stated:-
“....
41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by a claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the employment tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission, I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.
In addition, Mummery LJ in the course of his judgment repeated that costs are in the discretion of the employment tribunal and the employment tribunal’s powers to order costs are more sparingly exercised and are more circumscribed by the Rules of Procedure than those in the ordinary courts and that an employment tribunal costs order is the exception rather than the rule. He also made it clear that orders for costs are based on and reflect broad brush first instance assessments.
In the case of AQ Limited v Holden (UKEAT/0021/12], the Employment Appeal Tribunal confirmed that the threshold test in Rule 35(3) are the same whether a litigant is or is not professionally represented; but, in the application of those tests, whether a litigant is professionally represented may well require to be taken into account. It held that a tribunal cannot and should not judge a litigant in person by the standards of a professional representative. It suggested that, since lay people are entitled to represent themselves in tribunals and since legal aid is not available and will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves. His Honour Judge Richardson stated:-
“Justice requires that tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life .... lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. Tribunals must bear this in mind when assessing the threshold tests in Rule 35(3). Further, even if the threshold tests for an order for costs are met, the tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice. This is not to say that lay people are immune from an Order for Costs; far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity...”
In this context, it is also relevant to consider the judgment of Girvan LJ in Peifer when he stated:-
“When parties before the tribunal appear in person, without the benefit of legal representation, the lack of legal experience on the part of the unrepresented party may lead to the pursuit of irrelevancies and unnecessary lengthy proceedings. Whilst tribunals must give some latitude to personal litigants who may be struggling in a complex field they must also be aware that the other parties will suffer from delay, incur increased costs, be exposed to unstructured and at times irrelevant cross examination. While we must have sympathy for a tribunal faced with such a situation the tribunal remains under the same duty to ensure that the overriding objectives in Regulation 3 are pursued.”
8.5 I am satisfied that the claimant, prior to this hearing, was fully aware that it would be necessary for him to persuade a tribunal to extend time under the relevant legislative provisions, and in particular in relation to his claim for unfair dismissal, to extend time from in or about March 2014 until the date when he presented his claim to the tribunal on 28 October 2014. Also, at all material times, he was fully aware of the difficulties he faced in doing so, as he frankly acknowledged during the course of his submissions. Thus, I am satisfied that the claimant in deciding to pursue this pre-hearing review conducted the proceedings ‘otherwise unreasonably’. I take into account that the claimant is a litigant in person but it is apparent, from the record of proceedings of the Case Management Discussion on 18 December 2014, the claimant was warned about this issue of costs, if he pursued the time issue at the pre-hearing review. Indeed, the Vice President strongly urged the claimant to seek advice. Despite the foregoing, he still decided to pursue this application at a pre-hearing review. I came to the conclusion, despite the claimant’s denial, in the course of his submissions, that given the unfortunate circumstances which arose in his case, he wanted to have the opportunity to ‘tell his story in a tribunal’/‘have his day in court’, despite knowing the chances of success were limited in the circumstances. However, taking such a decision, despite what he had been told at the Case Management Discussion on 18 December 2014, inevitably had potential consequences, which he had to be aware of, not only for himself but also for the respondent, who were required to instruct counsel and to prepare for the pre-hearing review. In those circumstances I have come to the conclusion that I should exercise my discretion and make an Order for Costs against the claimant in this matter.
8.6 The claimant is not working and is in receipt of benefits of approximately £850.00 per month, which includes housing benefit of approximately £230.00 in respect of his rent of £600.00 per month for his rented accommodation. He has the normal usual outgoings and no savings. In the circumstances I decided to have regard to the claimant’s ability to pay, when considering the amount of any Order for Costs. In the circumstances, I make an Order for costs to be paid by the claimant in the sum of £100.00 (together with any Value Added Tax properly payable by the claimant to the respondent), as a contribution towards the costs of the respondent.
Employment Judge
Date and place of hearing: 22 January 2015, Belfast
Date decision recorded in register and issued to parties: