United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J McNEILL (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW


 


JUDGE PETER CLARK

1. This is an appeal by the Applicant before the London (Central) Employment Tribunal, Mr Jones against a costs Order made by a Tribunal chaired by Mr P R K Menon, sitting on 26 January 2001, having dismissed the Appellant's application for interim relief in a case in which he contends that he was unfairly dismissed by his former employer, the Royal National Institute for the Blind, by reason of his having made a protected disclosure.
2. The Tribunal heard evidence from the Applicant and one other witness on his behalf, and three witnesses called on behalf of the Respondent. Having done so, they concluded that they were unable to say on the material before them at the interim relief hearing that the Applicant was likely to succeed in his complaint based on the inadmissible reason relied on, at the full merits hearing. There is no appeal against that finding.
3. So far as the Order for costs is concerned, the Tribunal concluded under Rule 12(1) of the 1993 Rules of Procedure that this interim relief application was wholly misconceived and should have never been brought. Indeed, they go on to say that the Tribunal's time and that of the Respondent had been wasted, and the latter had incurred unnecessary expenses and that the interim relief hearing date could have been more usefully spent as the first day of the full hearing.
4. In support of the appeal against the costs Order, Ms McNeill takes essentially two points. First, she submits that the Tribunal took into account an irrelevant factor when they said that this type of claim was no different from any other unfair dismissal claim, in that a claim for reinstatement could be pursued at the full hearing. She submits, correctly, that there are material differences between this type of claim and the ordinary unfair dismissal claim; in particular there is a right to apply for interim relief. The reason relied on in this case is an inadmissible reason which if made out, does not require a further enquiry as to the reasonableness of the dismissal and the ordinary limit on compensatory awards does not apply.
5. However, we think that that passage in the Tribunal's reasons has been taken out of context; all that the Tribunal were saying was as in any unfair dismissal case, if the Applicant succeeded at the full merits hearing, he would be able to seek reinstatement.
6. We therefore reject the first ground of appeal, and turn to the second. Ms McNeill submits that the Tribunal, in deciding whether or not the Applicant had acted unreasonably for the purpose of the Respondent's costs application, took into account an irrelevant factor by dealing with the case on the basis that because there was a dispute or disputes of fact between the parties, it was not then possible for the Tribunal to find that success at the full hearing was likely so as to grant the interim relief sought.
7. Again, we think that that overstates what the Tribunal is saying. They heard the evidence and plainly decided that the dispute was so great, as must have been apparent to the Applicant from the outset, that it was impossible to say on that disputed evidence that success at the full merits hearing was likely. It is in these circumstances, exercising their wide discretion that the Tribunal considered the application to have been misconceived, and that therefore the Applicant had acted unreasonably for the purposes of Rule 12(1).
8. The final point which we raised with Ms McNeill is the question of proportionality. This is an appeal about a costs Order for £200. She made the point in response that at the full hearing of this application the Employment Tribunal then sitting, which will be different from the one sitting on the interim relief application, may take an adverse view of the Applicant's case simply on the basis that the earlier Tribunal had not only dismissed his interim relief application, but did so with an Order for costs.
9. We think that that fear is ungrounded. We make it clear that at the full hearing, neither the decision by Mr Menon at the interim stage, nor indeed our decision at this appeal, should have the slightest influence on the final Tribunal's view of the facts, having seen and heard all the witnesses. In these circumstances we shall dismiss this appeal.