Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  1140/14

 

 

 

CLAIMANT:              Geraldine Birt

 

 

RESPONDENT:      Glasswater Retirement Home Lodge Ltd and Others         

 

 

 

DECISION (Preparation Time Order and Wasted Costs Order Applications)

(A)         The application of the first-named respondent (“the respondent”) for a preparation time order is granted.  It is ordered that the claimant shall pay to the respondent the sum of £568 in respect of preparation time. 

(B)         The respondent’s application for a wasted costs order is dismissed.

 

Constitution of Tribunal:

Employment Judge:                      Employment Judge Buggy

Members:                                         Ms L Gilmartin

                                                            Mr I Atcheson

 

Appearances:

The respondent (who was the applicant in respect of the preparation time order application and the wasted costs order application) was represented by Mr Phillip Boomer.

The claimant was represented by Mr G Kilpatrick, Solicitor.

 

REASONS

 

1.            In the main proceedings in this case (which culminated in the issuing of a main Decision in October 2015), the claimant and main respondent (“the respondent”) were as specified above.  The claimant was employed by the respondent company (“the Employer”) at Glasswater Lodge Retirement Home (“the Home”) for several years until 2014.  In October 2014, after the commencement of these proceedings, the claimant resigned from that employment.  Because of illness, the claimant had been unfit for work, throughout the period which began on 10 March 2014 and ended on the date on which her resignation took effect. 

 

2.            When these proceedings were originally presented, the claimant was seeking remedies, in these proceedings, in respect of the following acts and omissions, which are “the acts complained of” in these proceedings, and which are referred to as “the Acts” in this Decision: 

 

(1)          the omission to pay contractual sick pay to the claimant in respect of the relevant period of sickness and

 

(2)          at least 12 other Acts (“the Other Acts”).

 

3.            Unlawful deduction of wages was the cause of action in respect of the omission to pay contractual sick pay. 

 

4.            There was a wide variety of causes of action in respect of many of the Other Acts.  Those “other” causes of action included:

 

(1)          discrimination on pregnancy and/or maternity grounds,

 

(2)          discrimination on disability grounds and

 

(3)          detrimental treatment on the ground of having made a protected disclosure. 

 

5.            The claims in respect of the most of the Acts were withdrawn in February 2015. The DDA claims had been withdrawn some weeks beforehand.

 

6.            The unlawful deduction of wages claim, in respect of the omission to pay contractual sick pay, was the subject of a tribunal hearing in March and April 2015.  The substantive Decision in respect of that claim was issued on 6 October 2015.  (The present Decision should be read in conjunction with the October 2015 Decision).

 

7.            In the October 2015 Decision, this tribunal dismissed the claimant’s wages claim. We dismissed that claim because we had resolved each of three key questions in favour of the respondent.  As we pointed out at paragraph 23 of our Decision, we resolved the first of those questions (in favour of the respondent) with some hesitation.  As we pointed out at paragraph 28 of the Decision, we resolved the second and third of those questions (again, in favour of the respondent) “... again not without hesitation”.

 

8.            During the course of the main hearing, Mrs Sarah Reid produced a job description which, according to the claimant, was forged.  At the end of July 2015, after the main hearing had ended, the claimant wrote directly to the Office of the Industrial Tribunals, in relation to the forgery allegation. The matters mentioned in that communication could not be addressed unless and until a Case Management Discussion (“CMD”) had been held.  Accordingly, a CMD was held in mid-September 2015.  The outcome of that CMD was that the claimant did not thereafter pursue the matters which she had raised in the July correspondence.

 

9.            After the October 2015 Decision was issued, the respondent applied for a preparation time order (“PTO”) against the claimant, and for a wasted costs order (“WCO”) against Mr George Kilpatrick, the claimant’s representative. The present Decision is our decision in respect of those applications.

 

The rules in respect of preparation time orders

 

10.         At all material times, the respondent has been represented by its current representative, Mr Phillip Boomer.  Mr Boomer is not a practising lawyer.  Accordingly, the respondent cannot seek a costs order in these proceedings. 

 

11.         However, it can seek a PTO.  As is made clear at rule 42 of the Industrial Tribunals Rules (“the Rules”), a PTO is an order that a party (“the paying party”) make a payment in respect of the preparation time of an opposing party (“the receiving party”). 

 

12.         The rules in respect of the making of PTOs are contained at rules 42 - 45 of the Rules.

 

13.         It is clear that, in the present context, a PTO could only be made against the claimant in one or more of the situations listed at paragraph (3) of rule 44.  Those situations, as listed at that paragraph, are as follows:

 

“... 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”.

 

For the purpose of the Rules, the term “misconceived” includes having no            reasonable prospect of success.  (See regulation 2 of the Industrial Tribunals          Regulations). 

 

14.         At paragraph 13 above, we have indicated the precondition which has to be satisfied if a tribunal is to make a PTO.  However, even if that precondition is satisfied, a tribunal is still under no obligation to make an order for costs.  Instead, the satisfaction of that precondition merely invests a tribunal with the discretionary power to make such an order. (Rule 42(1) says that, in the circumstances described in rule 43, a tribunal “may” make a preparation time order). 

 

15.         The effect of paragraph (3) of rule 45 is that, in deciding whether or not to make a PTO, and in deciding how much any such order should be, a tribunal may have regard to the paying party’s ability to pay. In this case, the claimant accepts that she should be treated as being able to pay any preparation time award (because, in practice, any such award will be paid on her behalf by her trade union). 

 

16.         Paragraph (5) of rule 42 sets out the time-limit in respect of PTOs.

 

17.         In this case, the main decision was issued on 6 October 2015.  The PTO application was made on 27 October 2015.  Claims in respect of the Other Acts (see paragraph 5 above) had been withdrawn by the end of February 2015.  Nevertheless, the parties were agreed that there were no time-limit issues in connection with the making of the preparation costs order application.

 

PTO: The grounds and the arguments

 

18.       The respondent’s grounds and arguments in respect of its PTO application can be summarised as follows:

 

(1)          The occupational sick pay claim was misconceived and was based on lies. 

 

(2)          Due to the fault of the claimant, far too much detail was contained in the parties’ statement of legal and factual issues. 

 

(3)          The claimant’s discovery and/or additional information requests were disproportionate. 

 

(4)          The September 2015 CMD had to be held because of the letter which the claimant sent to the Office of the Industrial Tribunals in July 2015.  That letter should never have been sent.  The sending of that letter was the fault of the claimant.  In doing so, she had acted unreasonably.

 

(5)          As originally lodged, the claim form contained a wide variety of claims in respect of Other Acts, which were based on a wide variety of causes of action.  All of those other claims were brought and/or conducted vexatiously, abusively, disruptively or otherwise unreasonably, and the bringing and/or conducting of the proceedings in respect of those claims was misconceived.

 

PTO: Our conclusions on liability

           

19.      The first of the grounds for the PTO application is that the occupational sick pay claim was misconceived and was based on lies. That ground fails, against the following background and for the following reasons.  First, as has already been noted, the respondent successfully defended the sick pay claim because we determined all the key issues in the case in favour of the respondent.  However, as is noted in the main Decision (see paragraph 7 above), we decided some of the key issues, in favour of the respondent, with some hesitation.  (In other words, some of the issues were relatively finely balanced).  Secondly, we are not satisfied, on the balance of probabilities, that the claimant’s case, in respect of contractual sick pay, was based on lies. 

 

20.      The second of the grounds for a PTO was the contention that, through the fault of the claimant, far too much detail was contained in the parties’ statement of legal and factual issues.  We do agree that the level of detail in the statement of legal and factual issues was disproportionate.  However, we are not satisfied that the disproportionate level of detail was the fault of the claimant, or even that it was mainly the fault of the claimant, as distinct from being the fault, or mainly the fault, of the respondent. 

 

21.      The third PTO contention is that the claimant’s discovery and/or additional information requests were disproportionate.  If they were disproportionate, the respondent could have refused to voluntarily provide the discovery and/or additional information; that would have left the claimant in the position of having to seek an order in respect of discovery, and of having to seek an order in respect of additional information, in respect of the allegedly disproportionate subject-matter.  However, instead of declining to do so, the respondent did provide the requested discovery and additional information on a voluntary basis.  Accordingly, in our view, the claimant has not acted unreasonably or, or even inappropriately, in the relevant context. 

 

22.      We next refer to the fourth of the grounds upon which PTO has been sought (as set out at paragraph 18 above). 

 

23.      In our view, the claimant acted inappropriately in writing directly to the Office of the Industrial Tribunals, in respect of the alleged job description forgery, after the main hearing had concluded. Because of that correspondence, and because the claimant did not speedily abandon the query which she had raised in that correspondence, it was inevitable that a CMD would have to be held.  Accordingly, the preparation time work which had to be done on behalf of the respondent because of the holding of the September 2015 CMD is work which had to be done because of the unreasonable conduct of the claimant (in raising the relevant issue after the conclusion of the main hearing). 

 

24.      As already indicated above, in the circumstances of this case, unreasonable conduct, is a necessary but insufficient precondition for the making of a PTO.  (Even if, as in this instance, the need for the relevant work has been caused by the claimant’s unreasonable conduct, we still have a discretion as to whether or not to make a relevant PTO). 

 

25.      In all the circumstances of this case, we consider it to be appropriate to make a PTO in respect of the work carried out in connection with the holding of the unnecessary September 2015 CMD.

 

26.      Finally, we refer to the fifth of the grounds upon which the PTO has been sought. 

 

27.      According to that ground, the claim form, as originally lodged, contained a wide variety of claims in respect of Other Acts, which were based on a wide variety of causes of action; and all of those other claims were brought and/or conducted vexatiously, abusively, disruptively or otherwise unreasonably, and the bringing and/or conducting of the proceedings in respect of those claims was misconceived. 

 

28.      Having carefully considered the evidence and arguments to which our attention was drawn by Mr Boomer in connection with ground (5), we reject that ground, except to the following extent. 

 

29.      The overall factual context of this case was that this claimant’s mother had been dismissed from the mother’s post as manager of the Home, in extremely acrimonious circumstances.  In light of that overall factual context, we are sure that the claims specified in paragraph 30 below were misconceived in that they had no reasonable prospect of success. 

 

30.      The claims which never had any prospect reasonable prospect of success, which are referred to in the last preceding paragraph, were the following:

 

(1)          The claims in respect of discrimination on pregnancy and/or maternity leave grounds in relation to:

 

(a)       failure to advise the claimant of vacancies for interim and permanent manager posts; 

 

(b)       recruitment and selection arrangements for appointing to the posts and/or the Company’s ultimate decision to appoint others to the posts; 

 

(c)       failure to invite the claimant to a meeting on 3 March 2014 (addressing restructuring) and failing to provide the claimant of minutes and same; and

 

(d)       failure to advise the claimant of significant developments in the home including changes in management. 

 

(2)          The claims of discrimination on disability grounds in respect of the matters listed at sub-paragraph (1) above. 

 

(3)          The claims of detrimental treatment, contrary to Article 70B of the Employment Rights (Northern Ireland) Order 1996 (“ERO”) in respect of the acts specified at sub-paragraph (1) above. 

 

31.      In our view, from the very beginning, it was, or should have been, blindingly obvious, to all concerned, that the family feud, between the Christie and the Reid families, which had erupted in the context of Mrs Christie’s dismissal, was by far the most likely explanation for the conduct mentioned at paragraph 30 above. 

 

32.      As Mr Kilpatrick has pointed out, claim forms have to be completed with due regard to time limits; therefore, according to him, it is often appropriate to include in the initially drafted claim form, on a purely protective basis, claims which may well ultimately turn out to be unmeritorious;   and the purpose of such “contingent” claiming is to avoid falling foul of time-limits, at a time when there may be insufficient time to exhaustively examine the likely ultimate prospects of all potential claims; accordingly, such contingent claiming is often not unreasonable conduct.  We agree with all of those propositions. 

 

33.      However, the claims referred to at paragraph 30 above were not speedily withdrawn after the commencement of the proceedings.  In fact, most of them were not withdrawn until February 2015.  That was too late. 

 

34.      In our view, by failing to withdraw the paragraph 30 claims in a timely manner, the claimant behaved unreasonably. 

 

35.      As already noted above, in the circumstances of this case, the relevant unreasonable conduct (failing to withdraw the paragraph 30 claims in a timely manner) is a necessary but insufficient precondition for the making of a PTO.  (Even if, as in this instance, the need for the relevant work has been caused by the claimant’s unreasonable conduct, we still have a discretion as to whether or not to make a relevant PTO). 

 

36.      In all the circumstances of this case, we consider it to be appropriate to make a PTO in respect of the work which had to be done because of the delay in withdrawing the paragraph 30 claims. 

 

PTO:  Our conclusions on amounts

 

37.      The rules in respect of the calculation of the amount of any PTO are contained in paragraphs (1) and (2) of rule 45.

 

38.      The parties were agreed that any PTO had to be calculated on the basis of an hourly rate of £34 per hour. 

 

39.      Mr Boomer told us that because of the holding of the September 2015 CMD, he had had to carry out two hours of preparation work.  We accept that that is a correct estimate of that particular aspect of the work. 

 

40.      According to Mr Boomer, he spent 145 hours in preparing for the main hearing of these proceedings.  He asserted that 120 hours of that work was done prior to 20 February 2015. Mr Boomer was unable to quantify how much of that 120 hours of work had been needed because of the failure to withdraw the paragraph 30 claims in a timely manner.  

 

41.      Doing the best that we can in the circumstances, we have roughly estimated that £500 worth of extra preparation time will have had to be done because of the claimant’s delay in withdrawing the paragraph 30 claims.  (In other words, approximately 15 hours of extra work had to be carried out because of the undue delay in withdrawing the paragraph 30 claims). 

 

42.      Accordingly, we make a preparation time order award of £568. 

 

43.      £68 of that overall sum is attributable to the preparation time work which had to be carried out in relation to the September 2015 CMD.  The other £500 relates to the preparation time work which had to be carried out because of the delay in withdrawing the paragraph 30 claims. 

 

WCO:  The rules, the grounds, the arguments and our conclusions

 

44.       The rules in respect of the making of a WCO (see paragraph 9 above) are contained in rule 48. 

 

45.       Paragraph (1) of rule 48 empowers the tribunal to make a “wasted costs order” against a party’s representative.

 

46.       In that context, “wasted costs” is defined, at paragraph (3) of rule 48, in the following terms:

 

“Wasted costs” means any costs incurred by a party –

 

(a)       as a result of any improper, unreasonable or negligent act or omission on the part of any representative; or

 

(b)       which, in the light of any such act or omission occurring after they were incurred, the tribunal or chairman considers it unreasonable to expect that party to pay.”

 

47.      The respondent sought a WCO against Mr Kilpatrick, but only in respect of:  (1) the preparation time work which was necessary in the context of the holding of the 20 February 2015 CMD, and (2) the preparation time work which was necessary in connection with the holding of the September 2015 CMD. 

 

48.      The respondent argues that the February 2015 CMD had to be held only because of the unreasonable conduct of the claimant’s solicitor, Mr Kilpatrick.  However, in our view, it is clear, from the first paragraph of the record of proceedings of the February 2015 CMD, that one of the main purposes of the CMD was to check that the case was on track for a hearing.  Furthermore, we note that, at that stage, the respondent’s witness statements had still not been furnished, despite the expiration of a relevant time limit which had been stipulated during a previous CMD. 

 

49.      Against that background, and for those reasons, we do not accept that the holding of the February 2015 CMD was to any extent the result of any improper, unreasonable or negligent act or omission on the part of Mr Kilpatrick. Therefore, the WCO application in respect of the February 2015 CMD fails.

 

50.      The respondent also seeks a WCO in respect of the work which was carried out because of the fact that the September 2015 CMD took place. 

 

51.      According to the respondent, if Mr Kilpatrick had “taken a firmer line” with his client it would not have been necessary to hold that CMD; according to the respondent, if the claimant had been informed, in a timely manner, of the inappropriateness of her post-hearing correspondence, she would probably have told the Office of the Industrial Tribunals, long before the date of the September 2015 CMD, that she was not pursuing the issue which she had raised in the July correspondence. 

 

52.      On the basis of the evidence and arguments available to us, we are not satisfied that, in connection with the holding of the September 2015 CMD, Mr Kilpatrick has been guilty of any improper, unreasonable or negligent act or omission. 

 

53.      In our view, once the claimant had unilaterally decided to raise the alleged “forgery” issue in the July correspondence, it was inevitable that another CMD would have to be held in this case, unless she resiled from the position set out in her July 2015 correspondence, very soon after that correspondence was sent.  She did not speedily do so and, in those circumstances, the holding of the September CMD was an inevitability. 

 

54.      We have no evidence that the claimant’s delay (until the date of the CMD), in notifying the Office of the Industrial Tribunals of her intention not to pursue the issue which she had raised in her July correspondence, was the result of any negligent advice on the part of Mr Kilpatrick, or was the result of any negligent omission on the part of Mr Kilpatrick to provide relevant advice. 

 

55.      In those circumstances, the respondent has failed to establish that any costs incurred by the respondent, in connection with the holding of the September 2015 CMD, were the result of any improper, unreasonable or negligent act or omission on the part of Mr Kilpatrick.  Therefore, the WCO application in respect of the September 2015 CMD also fails.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 22 January 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: