United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D BEARD (Of Counsel) Messrs Middleton Dummer Solicitors High Trees House 1-9 Pool Lane Oldbury West Midlands B69 4QX
For the Respondent	MR J WHITMORE (Of Counsel) The Legal Adviser Commission for Racial Equality Elliot House 10-12 Allington Street London SW1E 5EH


 


JUDGE LEVY QC: On 19 August 1994 Mr Tahir Ahmed ("the Appellant") made a complaint to an Industrial Tribunal of racial discrimination and victimisation. That complaint led to a hearing before an Industrial Tribunal sitting at Birmingham on 10th-13th July 1995 (inclusive) and 11 October 1995. In due course the Tribunal held that Mr Ahmed's complaint was not well-founded and it was dismissed. The decision was sent to the parties on 28 November 1995. Mr Ahmed appealed against the decision but his appeal failed to get through the preliminary ex parte procedure of appeals to this Tribunal.

There was an application for costs by the Respondent T O A Taxis Ltd ("the Company") which was the subject of a hearing at Birmingham on 4 April 1996. The unanimous decision of the Tribunal was that the Company's application for costs was refused. There was an appeal against that decision, which got through the net of the preliminary procedure and we have heard today the appeal against that decision, in which we can have had the unusual pleasure of hearing Counsel on both sides who appeared in the Industrial Tribunal.

Mr Beard, for the Appellant, asks us to contrast paragraphs 60 of the decision of the Industrial Tribunal with paragraph 4 of the decision on costs. Paragraph 60 is in these terms:

"The Tribunal had before it a substantial file containing copies of documents from the applicant's personnel file. It also saw and heard him as a witness. It formed the clear view that for many years the respondent had (even ignoring the protected acts) been very sorely tried by the applicant. His truthfulness is suspect; he attempts when it suits him to say that his knowledge of English is defective although the tribunal is satisfied that it is perfectly adequate for most purposes; he is unwilling to accept any criticism or adverse decision; he is willing to accuse others of lying or bending the rules if it suits his purposes; he takes any opportunity to retaliate against anyone who criticises him; he was rude and overbearing to staff of the respondent; he interfered in matters which were not his direct concern; he started unmeritorious County Court proceedings against the respondents alleging breach of contract following one disciplinary sanction; he involved solicitors when threatened with disciplinary action (even where racial discrimination was not in issue); he was not prepared to follow the respondent's rules when it suited him not to do so, but aggressive in insisting others did so when it did suit him; he was abusive; he showed an apparent contempt for the Complaints Committee and the Board of Management by either failing to appear at its meetings or putting forward excuses for non-attendance which were reasonably suspected of not being genuine; and finally (in what the tribunal finds was the respondent's genuine and reasonable belief) he had involved a member of the public in fabricating evidence."

Paragraph 4 on the decision on the application for costs reads as follows:

"The respondents make their application on the grounds that in bringing or conducting the proceedings the applicant acted frivolously, vexatiously or otherwise unreasonably. They rely upon various matters in support of their application including the tribunal's decision on liability - in particular, paragraph 60. They point out that the applicant had made two previous applications based upon alleged race discrimination. Neither came to a hearing as both were withdrawn by the applicant. The tribunal has found one was not made in good faith and in the belief that the application was true. They also remind the tribunal of its concern during the course of the liability hearing that matters were being canvassed which did not appear to be directly relevant to the issues and which appeared to indicate that extraneous disputes were being canvassed. They invite the tribunal to infer from those matters that this application was made without belief that it would succeed and in an attempt to harm or to embarrass the respondents. The applicant for his part denies that the application was lodged for those reasons and further points out that at the hearing two matters were put in issue by the respondents which were not known to be an issue at the time the application was lodged or in the early period of its conduct, namely the calling into question of the applicant's good faith in making the previous applications and the instruction given to disregard the previous applications when the applicant's expulsion was being considered."

The fifth paragraph of the reasons for dismissing the application for costs says this:

"The Tribunal has again given careful consideration to these representations but considers that there is not sufficient material on which it can find that in bringing or conducting the proceedings the applicant acted frivolously, vexatiously or otherwise unreasonably. It does not consider that the inference which the respondents invited it to make from previous events and from its earlier findings can reasonably lead to the conclusion that this application was made or pursued frivolously, vexatiously or otherwise unreasonably. In doing so it bears in mind among other things that a distinction might be drawn between allegations of race discrimination and allegations of victimisation."

Mr Beard has drawn to our attention the decision of the National Industrial Relations Court in E T Marler Ltd v Robertson [1974] ICR 72 when an appeal for costs was dismissed. The headnote reads in part:

"... that costs were a matter of discretion for the tribunal and that, since the tribunal had correctly exercised their discretion in relation to section 24 of the Industrial Relations Act 1971 and had not misdirected themselves in law, there were no grounds for interfering with their discretion and there would be no order for the costs of the hearing before the Tribunal."

Mr Beard has drawn our attention to the paragraph at page 76 of the judgment where this passage appears:

"As a general statement in respect of a claim made in good faith the passage accurately reflects those provisions in section 24 of the Act of 1971 which place the burden of justifying the dismissal upon the employer. But this is not to say that every dismissed employee can with impunity pursue a claim, however hopeless it might be or for whatever wrongful motives he may present it. If the employee knows that there is no substance in his claim and that it is bound to fail, or if the claim is on the face of it so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of the procedure of the tribunal to pursue it. If an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously, and likewise abuses the procedure. In such cases the tribunal may and doubtless usually will award costs against the employee."

Mr Beard has submitted to us that paragraph 60 of the original decision which we have read out, was unusually trenchant, and said that laid against paragraph 4 is perverse. He also reminds us that costs can now be given on a rather wider basis than it could when the case of Marler v Roberton was decided.

We are not persuaded by Mr Beard's submissions. We have been told by Mr Whitmore that Mr Beard made a submission of no case to answer, which took over an hour and was rejected without Mr Whitmore below being called on by the Tribunal; the Tribunal had remarked that it sometimes had strengthened the case of an Applicant if other evidence was presented. Notwithstanding this remark, the failure to strike out in our judgement strongly supports the submission that Mr Whitmore makes openly, that the case was not one which would have justified the Tribunal in making the order for costs which Mr Beard seeks.

Furthermore, although, as Mr Beard has pointed out to us, the Tribunal found that one of the counts brought by the Appellant was not made in good faith and was found to be wholly dishonest, that, in our judgement, puts an applicant at a disadvantage on credibility, when a Tribunal comes to assess evidence which it has heard. It does not mean to say that other parts of the complaint have been brought frivolously. It may well be that another Tribunal could have come to a different decision on costs, but in our judgment, in the exercise of its discretion the Industrial Tribunal was not perverse or its decision was not one as would entitle us to interfere with the decision on costs. We therefore dismiss this appeal by the Company.