United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED


 


JUDGE REID QC: This is an appeal by the applicant below, Mr Michael Kirkland, against a decision of an Employment Tribunal at London (South), given on 14th June 2000, by which his application for compensation because he was "automatically unfair dismissal and wrongful dismissal" was dismissed on withdrawal by the applicant.

1. He now wishes to appeal because, he says, that:

"In our [that is his and Mr J Kirkland who appears to have represented him and appears to be some sort of relative] opinion this [i.e. a letter from the Employment Tribunal] was a frightening letter and we had no option but to withdraw the complaint of 'wrongful dismissal'. Why was the respondent allowed to send to the appellant a statement of costs before a decision was made by the Employment Tribunal hearing."

2. The course of events was this: Mr Kirkland put in his claim. The initial reaction of the tribunal, when it saw that claim, was to have doubts as to whether the claim had any prospects of success. As a result of those doubts, a letter was written on 11th February 2000 to Mr J Kirkland in these terms:

"1. I have referred the Originating Application and the Notice of Appearance in this case to a Chairman of the Tribunals who has asked me to write to you.

2. Under the Employment Rights Act 1996 an employee is not entitled to a redundancy payment unless he or she has two years' or more continuous service. Usually that service must be with the Respondent employer although in some circumstances employment with associated employers or with predecessor employers may count towards the period.

3. From your Originating Application it appears that you have less than the necessary two years' service. For that reason a Chairman of the Tribunals is considering whether to strike out your Originating Application on the grounds that it is frivolous in the sense of having no prospect of success. If you wish to withdraw your application or to give reasons why it should not be struck out, please do so to me in writing within 14 days of the date of this letter.

4. If you need advice about this matter you might consider consulting your local Citizens Advice Bureau or Law Centre, your Trade Union representative (if any) or a solicitor."

3. The follow up to that was eventually that Mr Kirkland decided to proceed on the basis that his claim was a claim only for stigma damages arising out his dismissal. He formulated a claim on 10th May asking for approximately £8,000 by way of damages. On 25th May the tribunal wrote again to him. The material paragraph of the letter:

"A Chairman has asked me to advise you that it is doubtful whether any of the items you claim can be awarded. You must seek legal advice before pursuing this case further."

4. On 7th June the respondents to the application wrote to the tribunal suggesting that the case could be considered as vexatious and concluded their letter:

"If the tribunal is not minded to strike out the case, would you consider advising the applicant of the risk of a costs order being made against him."

5. The response from the tribunal was in substance as follows:

"It is not for the Tribunal to advise parties. Striking out is not an option, given the proximity of the hearing date and the requirements of allowing time to make representations before a striking-out order is made.

Of course, if you wish to put the application on notice that, if he fails at the hearing, you will seek an order of costs against him, that is a matter for you."

That the respondents then did. They put Mr Kirkland on notice enclosing a letter from their solicitors indicating the costs, at that time, amounted altogether to some £500 plus VAT.

6. On 13th June 2000 the tribunal wrote to Mr Kirkland. The material part of that letter was:

"He [i.e. a Chairman] does not consider that "stigma damages" could be awarded in this case. If therefore the legal advice you have received is that any other claim you are making is bound to fail, you should consider withdrawal of your complaint to the Tribunal, since a hearing which is a waste of time may result in consideration of an order for costs against you."

7. That brought a response the following day in these terms:

"The issues have been resolved between the parties and in the circumstances I wish to withdraw the case."

That was signed by Mr J Kirkland a representative for the applicant, Mr M Kirkland.

8. The complaint as formulated in a written skeleton argument is in these terms:

"A/ Mr Michael Kirkland was under the impression that the Industrial Tribunal was on the side of Southern Converters Ltd.

B/ I do not think that the tribunal should have agreed to Southern Converters sending to me (M Kirkland) a copy of expenses.

C/ I think that this was a ploy to make me (M Kirkland) withdraw from the case against South Converters

I decided to drop the case as I had [not] got the money [n]or [could I] afford to pay their expenses. [Our interpolation in italics]

D/ In my opinion this case seemed to have been settled before the Industrial Tribunal hearing."

He concluded his letter to the EAT:

"Thank you for your help and advise."

9. There had previously been a letter from Mr J Kirkland on behalf of the applicant, the substantive part of which was:

"I would like to know why was the Respondent allowed to send a statement of costs, before a decision was made by the Industrial Tribunal?

Have I the right to complain to the President oft the Tribunals?"

10. In our judgment, there can be no conceivable justifiable complaint. What happened was that a claim was made which for the most part was manifestly unsustainable. An attempt was then made to bolster it with a claim for stigma damages, which an Employment Tribunal Chairman took the view was likely to fail. At the same time the respondents were indicating that they might well seek costs. In those circumstances, it seems to us that the tribunal acted entirely properly in putting the claimant on notice as to the possibility of a costs order being made against him if the matter proceeded and he was unsuccessful. Similarly, it does not seem to us that any criticism can be made against Southern Converters Ltd for their putting the applicant on notice as to the costs that they had incurred and which they might be claiming together with further costs for the costs of the hearing.
11. The applicant was, in our view, extremely wise, having received the well-intentioned and sensible expression of view from the Chairman, in choosing to withdraw his application. It seems to us extremely likely that, had he gone on, he would have been visited with an order for costs. It would have been most unfortunate had he gone to the hearing without being aware that an order for costs might be sought against him and might well be made against him.
12. There can be no foundation on the documentation that which has been read in the course of this judgment for any suggestion of bias on behalf of the tribunal. The tribunal was acting sensibly and properly. This attempt to appeal against a dismissal by consent is hopeless and should be dismissed without going to a full hearing.