United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR ALISTAIR GLOVER (Company Secretary)
For the Respondent	MS HEATHER DARDIS (of Counsel) Instructed By: Messrs Thompsons Solicitors The McLaren Building 35 Dale End Birmingham B4 7LF


 


MR JUSTICE LINDSAY (PRESIDENT):

1. We have before us, by way of a full hearing, the appeal of Special Metals Wiggin Ltd in the matter S.P. Moore against Special Metals Wiggin Ltd. The appeal of the employer, Special Metals Wiggin Ltd, has been withdrawn and the only issue before us is the question of costs, as to which we have heard Mr Alistair Glover for the company and Ms Heather Dardis for Mr S.P. Moore, the employee.
2. The chronology of the matter is that on 3 July 2000 Mr Moore lodged an IT 1 for constructive dismissal. He said that he had been employed by the company from July 1990. On 10 July 2000 the Company claimed that he had been dismissed and in its IT 3 of that date it said that there had been no breach of contract such as to justify Mr Moore regarding himself as constructively dismissed.
3. On 22 March 2001 there was a hearing at Hereford. The Applicant was represented by Counsel. The Company appeared by its Company Solicitor. On 2 May 2001 the Decision of the Tribunal was sent to the parties. It was a Decision of a panel of three under the chairmanship of Mr Roger Jones and it was:

"The unanimous decision of the tribunal is that the Applicant was constructively and unfairly dismissed. It is ordered that the Respondent should pay the Applicant compensation of £7,959.00. The Recoupment Regulations do not apply."

4. We do not need to go into the Extended Reasons in any great detail but there was apparently a history of difficulties between Mr Moore and the employer and, ultimately, Mr Moore had lodged a grievance. The grievance, in his view, had not been proceeded with as promptly as it should have been; it was put off. The Tribunal said in their paragraphs 28, 29 and 30 as follows:

"28 On 5 April 2000 the Applicant felt that there had been a fundamental breach of contract and a fundamental breach of the implied term of mutual trust and confidence.

29 The Applicant considered that the final straw was his employer's failure to hold a grievance hearing.

30 The Tribunal found that there was an abdication of management responsibility in the Respondent's dealings with the Applicant. Much of the Respondent's evidence was contradictory and it was clear, the Tribunal found as a fact, that one manager was 'passing the buck' to another in dealing with the Applicant."

And it was that handling of the grievance, or the failure to handle the grievance, that was in Mr Moore's eyes "the final straw that broke the camel's back" and hence his claim succeeded.

5. On 12 June 2001 a Notice of Appeal was put in asserting that the decision of the Tribunal was perverse; that it was making findings as to which there had been no evidence given in support.
6. On 29 October 2001 the matter came before the Employment Appeal Tribunal by way of the usual preliminary hearing and it came before a panel of three, sitting under His Honour Judge Reid QC. The Company had concentrated on the grievance issue but the learned judge, whilst allowing the matter to go forward to a full hearing (that is to say, to today's hearing), said this:

"It does not follow, we should add, that the Appellant would be 'home and dry' even if it succeeded on that point, [that is the grievance point] because the Tribunal found that there were three separate matters and even without the grievance procedure it would have been possible and proper for Mr Moore to treat himself as constructively dismissed, but there is an argument for saying that once Mr Moore had embarked upon the grievance procedure he should not thereafter have walked out leaving, what the Appellants say was a perfectly proper grievance procedure, in mid stream."

7. So that, although the matter was allowed to come to a full hearing, it was pregnant with problems that might grow and prove something of a difficulty for the Appellants.
8. On 7 December 2001 Mr Moore's Solicitors put in a Respondent's Answer. They were simply relying on the same grounds as had the Tribunal.
9. On 19 December 2001 the Chairman's notes were supplied but it would seem that they did not get through to the parties until around about 10 January 2002. There then, as it seemed at the time, completely unexplained, came a letter "out of the blue", so far as the Respondent to the appeal was concerned, a letter of 21 February 2002. The copy I am looking at is from the Appellant and is addressed to the Employment Appeal Tribunal but presumably there was a similar one sent to the Respondent's, Mr Moore's Solicitors, and it said:

"Please note that we have decided to withdraw our appeal. We have advised Mr Moore's solicitors of this decision."

10. The Employment Appeal Tribunal, as it is bound to do in this sort of circumstance, then asked Mr Moore's Solicitors for their attitude to this new development and on 26 February, Thompsons, the Solicitors acting for Mr Moore said:

"We are surprised at the Appellant's late withdrawal of their appeal as this matter was due to go before the Employment Appeal Tribunal on 6 March 2002.

We have already briefed Counsel who has drafted skeleton arguments in relation to this matter. Counsel has informed us that her costs to 26 February 2002 are £450.00 plus VAT. You should also note that Instructing Solicitors have incurred costs in the region of £500.00 in preparing for the appeal and liaising with Mr Moore.

As a result, we ask that the Employment Appeal Tribunal make an Order for our costs for preparing for the Appeal."

11. The issue was directed by the Registrar, to go forward to today's hearing, for us to deal with the issue of costs. The Company wrote on 1 March:

"We confirm that we will not pursue our appeal on 6 March 2002, but will merely deal with the application for costs."

12. That has been the position this morning. We have dealt only with costs. We need to bear in mind Rule 34 of the Employment Appeal Tribunal Rules (1993) sub-rule (1) of which says:

"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."

Sub-rule (2) provides that the Appeal Tribunal may assess the sum to be paid or it can pass that task to a costs judge.

13. There is no question of improper or vexatious behaviour. The question has simply been has there been unreasonable conduct in the conduct of the appeal? To bring the appeal was not in any way unreasonable. The preliminary hearing identified arguable matters of law that were proper to go to a full hearing and it could be said that it would be wrong for the Employment Appeal Tribunal to discourage the withdrawal of proceedings where, for whatever reason, either side chooses not to go forward, notwithstanding that the preliminary hearing in question has identified some question of law.
14. But the correspondence that we have seen identifies no recent change of circumstances that could have led to the withdrawal of the appeal; that has been explained to us in better detail by Mr Glover this morning. The position is, he says, that they got the Chairman's notes around about 10 January. They had instructed Counsel by around about 26 January. By 12 February Counsel's advice had emerged which was that they were less than likely to succeed but not all that much less than likely to succeed. Having received that advice around about 16 February, they had chosen to go forward with the appeal. By 18 February Counsel had been told that they were going ahead with the appeal but by 20 February Counsel had become less optimistic (indeed, more pessimistic, perhaps, would be a better way of putting it) such that he advised on 20 February that their task in showing perversity in the Employment Tribunal's Decision was going to be a very difficult one. So on 21 February they chose to withdraw and hence caused that letter to be written of 21 February, which we cited earlier. It is Mr Glover's case that that history discloses no unreasonable conduct, no unreasonable delay.
15. But, for all that, there was no warning from the employer's side to the employee's side that it might have been prudent for the employee side to stay their hand a little and not fully to prepare for the hearing but, perhaps, to wait a day or two until they had heard, in more detail, whether the Appellant was going to go forward or not. That is exactly the sort of communication which, on a without prejudice basis, could have been sent out by the employer to the employee or from their respective advisers, if so instructed. It is a paradox that we have before us in the sense that, had the employer gone ahead today with his appeal and argued it as persuasively as Mr Glover could have done, they would be very unlikely to have borne any liability in costs, given the fact that in the Employment Appeal Tribunal costs do not follow the event as they would do in many other Courts. It is open to Mr Glover to say that, surely, the employer should not be worse off, not having wasted the Court's time with an appeal that the Company did not truly want to run, than it would have been had it gone out of its way to waste our time and to have proceeded with an argument in which it had little faith?
16. But, for all that, it does remain in our view unreasonable to have left the withdrawal of the appeal so late in the day without any form of exploration with the other side as to whether they could hold their hand a little instead of continuing to prepare the case for the hearing, and we, on balance, feel that the appropriate order here would be that some costs should be payable by the Company, Special Metals Wiggin Ltd, to Mr Moore's side.
17. We have looked at the figures which have been presented to us. They are rather higher than the earlier figures that we cited in the correspondence; they now total £1,339.38. As will have been noticed from our citation from the Rule, we can assess the sum ourselves and it would be absurd to send the matter off to a taxation of costs because the taxation of costs would cost roughly as much as the amount of costs in issue. But, doing the best we can, to reflect the fact that there should have been an earlier communication to stay the hand of the employee side, we award Mr Moore's side £500 only, to be paid by Special Metals Wiggin Ltd and, if there is any difficulty about the time needed for the payment, we will ask Mr Glover what he says about time within which to pay that. [After discussion] The Company therefore is to pay £500 to Mr Moore's side within 14 days.
18. We allow the withdrawal of the appeal to proceed and accordingly dismiss the appeal.