United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellants (EATS/0022/02)	Mr D Williamson, Queen's Counsel Instructed by- Messrs Brodies Solicitors 15 Atholl Crescent EDINBURGH EH3 8HA
For the Respondent For the Appellant (EATS/0023/02)	Mr D Hoey, Solicitor Of- Messrs Brechin Tindal Oatts Solicitors 48 St Vincent Street GLASGOW G2 5HS Mr D Hoey, Solicitor Of- Messrs Brechin Tindal Oatts Solicitors 48 St Vincent Street GLASGOW G2 5HS
For the Respondents	Mr D Williamson, Queen's Counsel Instructed by- Messrs Brodies Solicitors 15 Atholl Crescent EDINBURGH EH3 8HA


 


LORD JOHNSTON:

1. This is an application for a review of a decision of this Tribunal which was dated 13 December 2002.
2. The history of the matter is highly relevant.
3. There have been four hearings in the course of this protracted case in which the applicant maintains discrimination on grounds of disability by her employers.
4. At the first hearing before the Employment Tribunal she lost upon the merits of the case and the issue of remedy was only dealt with in passing. She appealed that to the Employment Appeal Tribunal which found in her favour, determining that there had been a discriminatory act by the employer. They remitted the case to a further Tribunal to consider remedy. At that hearing she was awarded a very substantial amount of money, albeit, there was an arithmetical error of some £10,000.
5. Against that decision the employer appealed to this Tribunal for the second time and was successful. However, they were successful upon a ground which was intimated only five days before the hearing before this Tribunal. That being so, the applicant seeks expenses in respect of what parts of the proceedings she regards as abortive, having regard to the way in which the employer handled the matter.
6. A review was also sought on the basis that this Tribunal had made an error in its construction of the decision of the original EAT hearing but I only record that, having regard to the fact that the decision of this Tribunal is that, whatever be the nature of the discrimination found to have existed, it had no practical bearing on any consequences as regards loss. However, if the matter goes further it has to be recorded this point was taken.
7. The issue of review now, accordingly, is directed solely to expenses and I am prepared to entertain this at once having regard to the matter was raised at the previous hearing and this Tribunal failed to deal with it. The basis of the approach is that, in terms of Rule 31(4) of the Employment Tribunal Rules 1993, unnecessary or unreasonable expense had been incurred by the applicant having regard to the fact there had been four hearings and she ultimately lost at the fourth on the question of an issue which was only raised for the first time immediately prior to that hearing. That issue was, whether any loss at all had been sustained, irrespective of any discrimination and that was the argument that succeeded before this Tribunal.
8. Mr Hoey re-emphasised the history on behalf of the applicant, and, maintained, that at the very least the point should have been taken, if not initially, at least before the first remedy's hearing which would have rendered, possibly, that hearing and, in any event, the second hearing before this Tribunal, nugatory.
9. Mr Williamson, accepting that the point had been taken very late, although he tried to maintain it was mere clarification of an existing ground, nevertheless, there had been no unnecessary expense because all the various steps of the case would have happened anyway. The first appeal to the EAT was obviously necessary. The subsequent remedy's hearing was also necessary and a subsequent appeal from that to this Tribunal might, accordingly, have been the only one that was affected by the delay in taking, what is now currently, the successful point. While there is considerable force in the argument that all four hearings would have occurred whenever this point was taken, I feel that in fairness to the applicant, if it had been taken earlier, at least the second hearing before this Tribunal might not have taken place if the point had succeeded at the lower Tribunal.
10. In these circumstances since there is a broad discretion vested in this Tribunal on the question of costs, notwithstanding the fact that the employer succeeded before this Tribunal, having regard to the lateness in the day of the point being taken which I felt obliged to admit because it went to the core of the case, some mark of unreasonable or unnecessary expense should be made in favour of the applicant and I think the fairest way to do that is to find her entitled to a proportion of the expenses before this Tribunal at the second hearing which will be modified to one half. Beyond that no further ruling on expenses will be made.
11. Given the complexities of this case, even though it might be regarded as almost unique, I am prepared to grant leave to appeal to the Court of Session on all aspects of the findings of this Tribunal.