United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK: The Appellant, Mr Khaliq, who is of Asian origin and highly qualified academically, joined the Respondent Company, British Steel as a temporary labourer at their Hartlepool plant in July 1996. His contract terminated on 28 December 1996.

Thereafter he presented an Originating Application to the Industrial Tribunal complaining of unlawful racial discrimination against the Company and three named supervisors, Messrs Gibson, Williams & Fraser.

His complaint came before a Tribunal sitting at Newcastle on 3 and 4 June 1997. He represented himself. The Respondents were represented by a solicitor. The Tribunal unanimously rejected the complaint and acceded, we see from a subsequent review decision by a majority, to the Respondent's solicitor's application for costs, limited to the maximum assessed amount of £500 provided for in Rule 12 (3) (a) of the Industrial Tribunal Rules of Procedure, on the ground that the Appellant had pursued his claims unnecessarily. We see again from the review decision that the majority had in mind the test of unreasonableness under Rule 12 (1) of the Rules. In awarding costs the Tribunal took into account evidence given by the Appellant during the hearing as to his means. See Wiggin Alloys Ltd v Jenkins [1981] IRLR 275.

Against the Tribunal's decision the Appellant appealed to this Appeal Tribunal, complaining of bias on the part of the Tribunal Chairman and against the costs order. The matter came before a division presided over by Bell J for Preliminary Hearing on 26 February 1998, on which occasion all grounds of appeal save for that relating to the costs order were dismissed. The costs issue was permitted to proceed to this full hearing on the following basis which we take from the judgment of Bell J, delivered on that occasion:

"In our combined experience an order for costs is unusual, especially in such a figure. The written decision does not say on what grounds the tribunal felt able to hold Mr Khaliq had pursued his claims unnecessarily. It is at least arguable that no reason was given to take this case out of the normal run of things so far as costs were concerned. In all those circumstances, we propose to allow this appeal to go ahead to a full hearing in respect of the order for costs alone."

This is the full hearing of the appeal and Mr Khaliq has appeared in person before us. He takes essentially two points in relation to the costs order.

First, he submits that he was justified in bringing this complaint of racial discrimination. He says that he took advice from the local Citizens Advice Bureau, who put him in touch with a legal adviser, Mr Newton. He tells us that Mr Newton was prepared to take his case and thought it had a good prospect of success until some two days or so before the date fixed for the hearing of the case, when at a meeting the Appellant was offered the choice of paying a fixed fee for Mr Newton's services or dealing with the matter on a contingency fee basis. The Appellant opted for the latter but it seems that Mr Newton did not have sufficient confidence in the strength of the case to take it forward on that basis. Accordingly, the Appellant appeared in person.

We were not at the Industrial Tribunal hearing. We can see the nature of the allegations that were made by the Appellant and rejected by the Industrial Tribunal. We think it is essentially a matter for the Industrial Tribunal to form a judgment as to whether, in all the circumstances of the case which they heard, a party has acted unreasonably in pursuing the claim. We therefore see no grounds for interfering with the order on that basis.

The second point he takes is in relation to his means. He accepts that during the course of the hearing before the Industrial Tribunal, when it was put to him by the Solicitor for the Respondent that he was only bringing these proceedings in order to make money, that he, the Appellant replied that he was not bringing the claim for that reason because his means were adequate. His words were that he was not short of money, although he points out that he never indicated that he had £500 to spare.

He tells us today that, following termination of his employment with the Respondent, he had some three months of temporary work and is currently working part-time two evenings a week and with the Job Seeker allowance has an income of £55 per week. He is also responsible for the cost and outgoings on his home.

We revert to the case of Jenkins in which this Tribunal said that it did not follow from that decision.

"... that the mere fact that for the time being an applicant is penniless is in every case a sufficient ground for refusing an order for costs. Each case depends upon its own circumstances and lies within the discretion of the Tribunal."

In our judgment that is the difficulty which Mr Khaliq faces today. The Tribunal is empowered under the Rules to make an order for assessed costs up to £500. It is obliged to take into account the means of the party against whom the order is sought. It did so in this case and we are unable to say, as a matter of law, that the Tribunal either misdirected itself or reached a conclusion which could be characterised as perverse.

In these circumstances we can see no grounds for interfering with the order made by the Tribunal and accordingly the appeal must be dismissed.