United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G GASKELL (ELAAS)


 


JUDGE PETER CLARK: This is an appeal by the applicant before the Stratford Industrial Tribunal, Mr Baah, sitting on 31st July 1997 against that tribunal's costs order in the sum of £500 made in favour of the respondents, London Voluntary Sector Training Consortium. Extended reasons for that order are dated 12th August 1997.

The background is that the appellant was employed by the respondents, a registered charity, as finance co-ordinator from July 1994 until 20th September 1995.

Following termination of his employment he presented a complaint of unlawful racial discrimination against the respondents on 10th October 1995. The claim was resisted.

On 6th May 1997 the case was listed for a two day hearing at Stratford on 31st July and 1st August 1997.

On 29th July the appellant faxed the Industrial Tribunal enclosing a copy letter dated 28th July he had sent to the respondents' solicitors which read as follows:

"I refer to the hearing of the above case on 31 July and 1 August.

Considering the fact that I have been involved in the charity sector for many years and presently hold a responsible position within the sector, I have given careful deliberation to the point of putting the good name of the sector in the prominent light and decided not to pursue my case against LVSTC.

Please note that I am making this gesture in the interest of the worthy and sound image for all involved in the charity/voluntary sector."

Having received that fax under cover of a letter to the tribunal indicating that the appellant was withdrawing his complaint a Chairman duly signed a decision dismissing the complaint on withdrawal on 30th July. We are told that at mid-day on that day the appellant was informed by telephone that the hearing on 31st July was vacated. The respondents' solicitors then faxed the tribunal on 30th July at, so the tribunal found, 15.47, indicating that they wished to make an application for costs.

A Chairman then directed that both parties attend on 31st July on the respondents' costs application. At 17.13 hours on 30th July, the appellant faxed the tribunal stating that he was now unable to attend, his solicitor had made other arrangements for the next day, and he asked that the costs hearing be postponed so that he could re-arrange his schedule and seek professional assistance.

That application was refused by the Regional Chairman who ordered that the matter should proceed the following day. That decision was communicated to the parties by telephone at about 5.30 p.m.

The appellant then telephoned the tribunal offices and left a message to the effect that he did not think it fair for the application to proceed and if it did so he would appeal and reinstate his claim. He was advised by an tribunal clerk that the matter would go ahead the next day and it was a matter for him as to whether or not he attended.

He did not appear on 31st July. The respondents appeared, represented by Counsel, whom we assume had already been briefed in connection with the substantive hearing.

The costs application went ahead. The tribunal was satisfied that the respondents had incurred considerable expense in preparing to resist the claim. They found that a withdrawal two days before the hearing amounted to unreasonable conduct under Rule 12 of the Industrial Tribunals Rules of Procedure. There was no explanation by the appellant as to why he had left the withdrawal until the last minute.

He tells us today, through Mr Gaskell, that he met with his solicitor on either 29th or 29th July, at which stage the decision was taken to withdraw the complaint. It is said that that decision was taken in part on the basis of documents which had been received from the respondents by way of discovery during the previous two weeks.

The appellant was, and had been since leaving the respondents, in work and therefore could be expected to have the means to pay something towards the respondents' wholly wasted costs. The tribunal in the event awarded the maximum assessed sum permitted under the Rules of £500.

True to his word, the appellant has appealed that costs order. The point taken on his behalf by Mr Gaskell, who appears under the ELAAS pro bono scheme, is that the tribunal acted with procedural unfairness in hearing the costs application in the absence of the appellant.

In our view that argument is unsustainable. The appellant had left his withdrawal to a late stage; the respondents were entitled to have their costs application heard. The Regional Chairman required the parties to attend; the appellant chose not to do so by making alternative arrangements so that he was able to attend and resist the costs application. We cannot see any ground in law for interfering with the exercise of the Regional Chairman's discretion in refusing to postpone the costs hearing, despite the original Chairman's order that the hearing date be vacated following dismissal of the Originating Application on withdrawal, which decision was communicated to the appellant at mid-day on 30th July.

In these circumstances we are not satisfied that there is any arguable point of law to go forward to a full appeal hearing. Accordingly, the appeal must be dismissed.