United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS N CUNNINGHAM (of Counsel) Instructed by: Free Representation Unit 4th Floor, Peer House Verulam Street London WC1X 8LZ


 


HIS HONOUR JUDGE PETER CLARK

1. The Appellant in this case, Mr Peter Mah, was employed by the Respondent, State Street Bank & Trust Company Ltd as a Portfolio Administrator from 12 February 2001 until his dismissal on 21 March 2002.
2. It appears that the problem during his employment related to his attendance and time keeping. As a result he was given a first formal warning on 16 July 2001 and a second formal warning on 26 October 2001. He was given a final written warning on 29 November 2001 which included the following observation:

"Peter needs to re-think the standards set by the Bank for lateness and change his schedules accordingly to be ready at his desk to work by 9am…If Peter is late even on one occasion after this disciplinary hearing, without good reason, he will move to the final stage (dismissal) of the disciplinary process."

3. Thereafter he was recorded as attending after the start time of 9.00 a.m. on three occasions; on 5 December 2001 he was four minutes late, one minute late on 3 January and three minutes late on 7 January. As a result a disciplinary hearing was held on 20 March and he was dismissed.
4. He then presented a complaint of both unfair dismissal and wrongful dismissal to the Stratford Employment Tribunal on 18 June 2002. That application was resisted and came on for hearing before a Tribunal chaired by Mr S M Duncan on 1 November 2002. On that occasion the Applicant was represented by Mr Hulme under the Free Representation Unit scheme and the Respondent by Counsel, Mr Craig.
5. The wrongful dismissal claim was withdrawn and dismissed accordingly. Having considered the unfair dismissal complaint the Tribunal dismissed it for reasons given with a decision which was promulgated on 21 November 2002.
6. The complaint having been dismissed, application was made on behalf of the Respondent for an order for costs against the Appellant on the grounds that the proceedings were misconceived and that they had no reasonable prospect of success.
7. A costs quantification was put before the Tribunal, which exceeded £10,000 – the limit for assessed costs under the Employment Tribunal Rules of Procedure. That application was opposed by Mr Hulme on behalf of the Appellant. As a matter of principle he submitted that the application was not misconceived, but it appears that no challenge was made to the actual costs bill advanced.
8. The Tribunal considered the submissions and concluded that the application was misconceived in the sense that it had no reasonable prospect of success, within the meaning of Rule 14 (1) of the Employment Tribunal Rules of Procedure.
9. That is not the end of the matter, because the Tribunal then has a discretion to decide whether any and if so what costs order should be made. The Tribunal expressed their conclusions on this exercise of discretion at paragraph 31 of their reasons in this way:

31 "Although after careful consideration we conclude that the bringing of the proceedings and continuing them to trial was in fact misconceived, in that neither the claim of wrongful dismissal nor that of unfair dismissal had a reasonable prospect of success, if Mr Mah had simply relied on the Iceland test we would have exercised our discretion by not making an order for costs. Accordingly we consider, using a broad approach, that the other issues have increased the costs by £3,000 (apportioned as requested). In accordance with the current law we have not taken into account the means of either party."

10. Earlier in their Extended Reasons, at paragraph 5, the Tribunal record the issues, as advanced by Mr Hulme on behalf of the Appellant, in this way, it being common ground that the reason for dismissal related to the Appellant's conduct:

5 (1) "Was the third formal warning reasonable;

(2) Was dismissal within the band of reasonable responses;

(3) Did the Respondents apply different standards to Mr Mah."

11. It therefore follows that the Tribunal would have exercised their discretion in favour of the Appellant and made no order for costs, even although the proceedings were, in their view, misconceived, had the additional first and third issues not been advanced.
12. Against that decision the Appellant appealed. His Notice of Appeal was considered by the Registrar under Rule 3 (7) of the EAT Rules and the Registrar decided that the EAT had no jurisdiction to entertain the appeal. The EAT's jurisdiction is circumscribed by the provisions of section 21 (1) of the Employment Tribunals Act 1996, which provides that appeals to the EAT shall be on a question of law only.
13. Dissatisfied with that ruling, amended grounds of appeal were lodged; both pleadings having been signed by Ms Naomi Cunningham of the Free Representation Unit and a very experienced practitioner.
14. The matter was then referred to me under EAT Rule 3 (10) for consideration of the Registrar's ruling. Historically the provisions contained in Rule 3 (7) to (10) of the EAT Rules have not been utilised in England. My understanding is that the Rule has been in regular usage in Scotland for a number of years.
15. However, in the recent Practice Direction issued by the President Mr Justice Burton in December 2002, attention is specifically drawn to the provisions of Rule 3 (7) at paragraph 9 (6). The purpose of the Rule is to weed out cases which raise no point of law.
16. I turn then to the way in which this appeal is now put by Ms Cunningham. It is an appeal against the costs order only. There is no appeal against the substantive decision, that this dismissal was fair.
17. Her complaints are, first, that the Tribunal has given inadequate reasons for its costs finding: Meek v City of Birmingham District Council [1987] IRLR 250. I cannot see that such a submission arises in this case. It is plain that the Tribunal had found that this claim had no reasonable prospect of success, given their findings elsewhere in their decision. That is a view which, in my judgment, allows no argument as a matter of law, being one to which the Tribunal were plainly entitled to come.
18. Next is the question as to how they exercised their discretion in awarding £3,000 by way of costs. It seems to me that the Tribunal were plainly entitled to take the view that had this claim been argued simply on the basis of the band of reasonable responses test, they would then have exercised their discretion in favour of not awarding costs against the Appellant. However, they regarded the additional issues, to which I have referred, as unnecessarily broadening the scope of the case and made a proportionate award of costs accordingly.
19. Again, it seems to me that that is an exercise of discretion which cannot be attacked as a matter of law.
20. Ms Cunningham takes a further point, that the Tribunal did not investigate the quantum of the costs claim. She submits that it is manifestly excessive to run up costs of about £11,000 in defending a one-day unfair dismissal claim, which the Respondent contended was misconceived.
21. The difficulty with that submission is that it is quite clear to me, and Ms Cunningham does not submit to the contrary, that Mr Hulme, acting on behalf of the Appellant, did not challenge the quantum of the costs claim; rather, whether or not in principle any costs ought to be awarded.
22. In these circumstances, applying the well-known principle that goes back to Kumchyk v Derby City Council [1978] ICR 1116, more recently approved by the Court of Appeal, it seems to me that that is not a point which can properly be taken for the first time on appeal.
23. It follows, in my judgment, that, when analysed, these grounds of appeal do not raise a point of law. In these circumstances I uphold the Registrar's decision that the EAT has no jurisdiction to entertain this appeal and consequently I shall direct that no further action be taken upon it.