United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G EYITENE In Person
For the Respondent	THE RESPONDENT BEING NEITHER PRESENT NOR REPRESENTED


 


MR COMMISSIONER HOWELL QC

1. This appeal which is before us for full hearing is by Mr Gregory Eyitene against the decision of the London Central Employment Tribunal ordering him to pay the sum of £500 costs to the Respondents The Post Office on the withdrawal of his proceedings for racial discrimination, which he had originally brought against them by Originating Application dated 10 November 2000.
2. Mr Eyitene did not appear on the hearing before the Employment Tribunal on 3 May 2001 at which this Order was made because he had as he informed us, understood that the proceedings were to be simply to be removed from the record and that no attendance by him was necessary. Most materially, he had understood from a letter sent a week earlier by the Respondents' solicitors to the Commission for Racial Equality (who were at that stage acting for him) that if the proceedings were withdrawn then there would be no question of the Respondents applying for costs; even though if the proceedings were maintained they had made it clear that there would be such an application for costs.
3. Consequently Mr Eyitene was surprised that the Respondents attended before the Tribunal by Counsel and made an application for costs and it was granted by the Tribunal in the sum of £500 when Mr Eyitene's proceedings were in fact withdrawn. That had been done only the day before the date fixed for the hearing: and he informed us that this was because the Commission for Racial Equality had taken that long in order to reach a final decision on whether the proceedings should be continued.
4. The other material fact to record is that a letter has been received from the solicitors acting for the Respondents dated 22 February 2001 addressed to the Employment Appeal Tribunal recording that the Respondent:

"will not be opposing the appeal as the sums involved do not make it financially viable option to pursue."

That was followed up by a further letter of 22 March confirming that the Respondent does not intend to be present at this hearing or to be represented because the costs do not make that worthwhile. Accordingly although this is the full hearing of the appeal, only Mr Eyitene has appeared in person before us and there has been no appearance by the Respondents.

5. In our judgment the right course is for us to allow Mr Eyitene's appeal and to set aside the Order of the Tribunal directing him to pay the sum of £500 costs in the circumstances we have outlined. This implies no criticism of the Employment Tribunal, but it appears not to have been drawn to their attention that the letter of 25 April 2001 to which we have referred had given Mr Eyitene the impression that no Order for costs would be sought if his proceedings were withdrawn, as they were; and that he was given to understand either by the Tribunal office or by the lawyers acting at that stage that his attendance would not be required at the hearing.
6. We take into account also that the Respondents have indicated that they are not opposing this appeal. Consequently although it appears to us that it would have been within the discretion of the Employment Tribunal to make an order for costs even on withdrawal of the proceedings if satisfied that a party had acted unreasonably in pursuing them (see Rule 12(1) of the Employment Tribunal Rules of Procedure), we have reached the view that the right course is to set aside the Order that the Tribunal made on 3 May. Accordingly the appeal is allowed, that Order is set aside and there is therefore no Order for costs against Mr Eyitene.