United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E TOWU (The Appellant in Person)
For the Respondent	(The Respondent neither present nor represented. Relies on written submissions.)

SUMMARY

Practice and Procedure

The Tribunal did not err in law in ordering the Appellant to pay costs of £10,000 to the Respondent.


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Mr Emmanuel Towu against a judgment of the Employment Tribunal sitting at London South dated 21 March 2005. Mr Towu had brought a claim of sex discrimination against the Lewisham Hospital NHS Trust. His claim had been dismissed by the Tribunal in an earlier judgment. The Trust then applied for costs. By its judgment dated 21 March 2005 the Tribunal ordered Mr Towu to pay costs to the Trust in the sum of £10,000.
2. Today Mr Towu has represented himself. He has put in a Skeleton Argument which we have considered and he has developed oral submissions in front of us. The Trust has not attended but has put in a Skeleton Argument and by a letter dated 2 November 2005 relies on its answer and on the Skeleton Argument.

The Discrimination Proceedings

3. Mr Towu is a paediatric surgeon, a man of high qualifications and specialist skill. He had applied on more than one occasion in the past for appointments as consultant paediatric surgeon with the Trust. At the end of 2003 a further vacancy for consultant paediatric surgeon arose. Mr Towu was appointed as temporary replacement for the surgeon who had left. He held that post between 16 December 2003 and 31 March 2004 and later again, for a period (or periods) totalling eight months.
4. Five candidates including Mr Towu applied for the permanent position which involved work also with Guys and St Thomas NHS Trust, joining a team of five women Consultant Paediatric Surgeons. Only one of the five candidates was female. Selection and interview followed a process well known in NHS appointments. Mr Towu was shortlisted for interview; he was not ranked highly overall in the list of candidates, but was considered to meet the person specification and to have performed satisfactorily as the current locum. One candidate was excluded at the shortlisting stage. The interviews took place on 13 January 2004. In the end the candidate appointed was Mrs Kufeji.
5. In its merits decision the Tribunal reviewed in considerable detail both the process and the reasoning for the appointment. It found that Mr Towu and another candidate were lower in the rankings of those interviewing, and were eliminated first. There was discussion of the two remaining candidates before Mrs Kufeji was appointed. In the end, the decision to appoint her was unanimous.
6. Mr Towu's principal submission, as recorded by the Tribunal, was that he was not appointed because the outcome of the interviews was effectively pre-arranged; certain members of the committee used their influence to this end, in pursuit of an objective to appoint a woman to the post. In addition Mr Towu in a witness statement served shortly before the hearing (out of time) asked the Tribunal to consider earlier appointments as background, alleging that they demonstrated a settled practice of discrimination in favour of the appointment of women to the team. He made further points as the hearing progressed. He said there had been an alteration to the job description in order to prefer Mrs Kufeji's appointment. He said he was undermined in interview by being asked questions concerning his CV and research.
7. On the question of person specification, the Tribunal found Mr Towu had not proved there was any change. He had no direct evidence of a change. He did not question the person who he said was his source for the existence of a change. Professor Spitz, who was called and could give evidence on the point, denied there was a change.
8. On the question of an error in his CV, the Tribunal found there was indeed an error on his CV, which was properly pointed out to him and was not in any way indicative of gender bias.
9. On the question of research, the Tribunal found that the questions asked were entirely appropriate.
10. On the overall approach to the appointment, the Tribunal found there was no evidence at all that the members had decided they would only appoint a woman candidate, or were adversely influenced by some of their number. The Tribunal found that Mr Towu had failed to make out a prima facie case of sex discrimination. Indeed the Tribunal accepted the account and reasoning of those who made the appointment of Mrs Kufeji.

The Costs Hearing

11. By letter dated 7 October 2004 the Trust applied for costs. The Trust's case was that Mr Towu was aware from the outset that his claim could have no reasonable prospects of success, and that he acted vexatiously and unreasonably in raising a whole series of new allegations during the hearing including, in particular, allegations raised for the first time against Miss Dykes when he understood she would not be available to attend the full hearing to defend herself against those allegations. Mr Towu put in submissions in reply resisting those arguments.
12. The Trust did not ask for its costs to be assessed. It gave a full figure of costs as £24,425. A Tribunal only has power to award costs of that magnitude if there is an assessment. The Trust limited its application for costs to £10,000, desiring to avoid a detailed assessment of its costs because of the further expense involved. Mr Towu put in a separate response to the amount of costs.
13. In the course of the main hearing the Trust had drawn to the Tribunal's attention a decision of an earlier set of proceedings at the Stratford Tribunal, which Mr Towu had brought against Barts and London NHS Trust, alleging race discrimination arising out of an earlier application by a similar process of appointment. On that occasion the Tribunal had criticised Mr Towu in certain respects, which included late delivery of a witness statement, opening for the first time the relevance of earlier matters, and allegations for which he had no supporting evidence. The decision of the earlier Tribunal was before this Tribunal.
14. Both parties made submissions as to costs. The Tribunal took no evidence but, of course, had and was entitled to act on its own knowledge of the proceedings before it.

The Tribunal's Decision

15. The Tribunal directed itself that the Rule applicable to the application for costs was Rule 14 of the Employment Tribunal Rules Procedure 2001. The Tribunal was correct in this regard: see Regulation 20 of the Employment Tribunals (Constitution and Rules) Regulations 2004. Rule 14 provided as follows:

"Where, in the opinion of the tribunal a party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively, or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and if it so decides may make

(a) an order containing an award against that party in respect of the costs incurred by another party

(b) where the tribunal thinks fit, an order that the first party pay to the second party a specified sum not exceeding £10,000

(c) in any other case an order that the first party pay to the second party the whole or a specified part of the costs incurred by the second party by way of detailed assessment (if not otherwise agreed)."

Regulation 2 of the underlying Regulations defined "misconceived" as including "having no reasonable prospect of success."

16. The Tribunal then reviewed the authorities concerning Rule 14. It referred to Scott v Commissioners of Inland Revenue [2004] IRLR 713 at paragraphs 43 to 46 where in the context of discussion of the word "misconceived", Sedley LJ approved a submission that the question to ask was not whether the party against whom costs were sought believed they were in the right, but whether they had reasonable grounds for believing they were in the right.
17. The Tribunal in paragraph 9 of its Reasons did not quote the dictum of Sedley LJ correctly. They said, rather, that the test was whether the party had "reasonable grounds for thinking that the proceedings were misconceived". We will return later to the question whether this is a verbal slip or a serious error of approach.
18. The Tribunal went on to direct itself in accordance with E T Marler Ltd v Roberts [1974] ICR 72 as regard to the test for vexatious conduct, and McPherson v BNP Paribas [2004] IRLR 558 as regard to the process of exercising discretion where unreasonable conduct has been established.
19. The Tribunal reviewed the history of the proceedings in paragraphs 18 to 27. It referred to the earlier Tribunal proceedings in paragraphs 28 to 29. It referred to its own conclusion in the merits hearing at paragraph 31. The Tribunal then set out its conclusions:

"32. Having heard the submissions the Tribunal adjourned to deliberate. Before their deliberations were complete they spoke to the parties. There had been a confrontation between them during the recess. On that basis it was decided that the Tribunal would let the parties leave, reserve its judgment and reasons.

33. The Tribunal first considered whether or not the claim was misconceived. In its view the claim had not prospect of success. The Claimant had no evidence to support his allegations and they were doomed to fail. He must have known that he lacked the evidence to pursue the claim or succeed in the claim.

34. The way in which the Claimant has pursued and handled this case suggests that his motivation in bringing these proceedings (and indeed the earlier proceedings against Barts) was to give notice that, if in any future interview he was not appointed, he would bring similar proceedings.

35. He has conducted these proceedings unreasonably. He failed to give a properly itemised schedule of loss. He failed to provide a witness statement until the very last moment. His witness statement contained allegations that only Miss Dykes could answer and was provided when the Claimant understood that she would not be able to attend the hearing.

36. In those circumstances the Tribunal is bound to consider whether to award costs in this case. Having considered all the circumstances the Tribunal is satisfied that this is a case in which the Claimant has pursued a claim that he knew or should have known had no prospect of success, that his motivation in pursuing his claim was to attempt to influence any future committee that considers his job application, that he has pursued a case based upon a conspiracy that simply did not exist and that he handled the case unreasonably as outlined about. This is in the unanimous opinion of the Tribunal a proper case to make an award for costs.

37. The amount of costs as identified on the Respondent's statement of costs is £24,425.94 of which they are seeking some 40%. The Respondents explained that they were not proposing to seek an assessment of their costs in order to avoid incurring further expenses in this matter.

38. Subject to the appeal to the Employment Appeal Tribunal the Tribunal awards £10,000 to be paid by the Claimant to the Respondent. Such payment should be made within 14 days of the decision of the Employment appeal Tribunal. If the Employment Appeal Tribunal upholds the whole of any part of the appeal this award may be subject to review."

The Appeal

20. The appeal proceeds on an amended Notice of Appeal for which permission was granted by Order dated 17 June 2005. At a Preliminary Hearing on 10 August 2005 the Appeal Tribunal dismissed Mr Towu's appeal against the merits decision, but gave directions for a full hearing of the appeal against the award of costs.
21. We emphasise that the Appeal Tribunal sits as an appellate body only on points of law. It is if, and only if, an error of law is established in the judgment of the Tribunal that the Appeal Tribunal can intervene. The Appeal Tribunal does not exercise an original discretion in the matter of costs of its own. Only if there is an error of law in the Tribunal's decision does the Appeal Tribunal have any power at all to vary it or remit it.

Submissions and Conclusions

22. Mr Towu's first submission is that the Tribunal failed to do justice to the breadth of his claim when it concluded that he had no reasonable prospects of success. Mr Towu has drawn attention in his Skeleton Argument and in his oral submission to a number of matters: the fact that he received varying feedback about his performance at interview; that he was unclear why he was not appointed; that (as he puts it) the successful candidate did not meet the person specification and the three unsuccessful candidates did; that he had done the locum job successfully; that he believed the successful candidate was appointed because of her gender to join a department where all the consultants were female, and that he had requested clarification from the Trust and had received no response.
23. We bear in mind and state again that we deal only with points of law. In its judgment on the questions of costs, the Tribunal is not obliged to rehearse each and every point which could be made on behalf of one party or the other. The Tribunal had already given a decision on the merits, which deals in differing ways with the various points to which Mr Towu draws attention. For example, the Tribunal dealt with the question of feedback, clarification and complaint at paragraphs 10.29 to 10.32 of its merits decision. The Tribunal was well aware and indeed, recorded in its Merits decision that Mr Towu had done the locum job successfully. The fact that Mr Towu believed the successful candidate was appointed because of her gender was, of course, the subject matter of the case. But as we have seen, even if he did believe that, it was not determinative of the costs application. It is true that all the existing appointments to the team were female; that will sometimes be the case. The question for the Tribunal in its decision on the merits, on which it correctly focused was whether the appointment of Mrs Kufeji was tainted by sex discrimination. We do not think Mr Towu's first submission succeeds: it does not raise any arguable point of law.
24. Mr Towu's second submission is that the Tribunal failed to apply the test which it had identified in paragraph 9 when it came in paragraph 33 to state its conclusion that the claim was misconceived. In our judgment the Tribunal had the correct legal test in mind. The statutory question is whether the claim was misconceived, which includes the question whether it had reasonable prospects of success. In paragraph 33 the Tribunal assessed the prospect of success. It concluded that Mr Towu was doomed to fail, and had no evidence to support his allegations and must have known he lacked the evidence to support his claim. The Tribunal in paragraph 36 stated its overall conclusions on this point: it was that he had pursued a claim which he knew or should have known had no prospect of success. This is a correct statement of what must be established in order to satisfy the statutory test. The Tribunal did not for one moment fall into the error of supposing that it was sufficient that Mr Towu was proved by the result to be wrong. The Tribunal was well aware that the question was whether he had reasonable grounds for believing he was in the right. Although, as we have said, the Tribunal misquoted Scott v Commissioners of Inland Revenue earlier in its Reasons, in our judgment it plainly had the right test in mind when it reached its conclusions.
25. The third submission in Mr Towu's Skeleton Argument is that the Tribunal erred in law in concluding that his motivation was to attempt to influence any future committee that considered his job application. The Skeleton Argument submits that the Tribunal set out no sufficient basis for this conclusion. In our judgment this submission is not well-founded. A person's motivation for bringing proceedings which he knows, or ought to know, had no prospect of success will always be a matter of inference for a Tribunal. Detailed reasons for such an inference are not required. The Tribunal saw and heard Mr Towu give evidence at the merits hearing and would have been in a position to form its own judgment.
26. Mr Towu's Notice of Appeal also submits that the Tribunal failed to apply E T Marler Ltd v Roberts in this respect. Again, we disagree. The Tribunal referred to and set out the reference to "improper motive" by Sir Hugh Griffiths as a matter which the Tribunal might take into account.
27. We have noted also that there is a further Ground of Appeal in paragraph 4 of the amended Notice of Appeal. It is submitted that at paragraph 35 of its reserved judgment (where the Tribunal concluded that Mr Towu had conducted the proceedings unreasonably) it failed to give adequate reasons as to why the three matters amount to unreasonable conduct such as to justify an award of costs. The facts were that Mr Towu had not given a properly itemised schedule of loss; he had not provided his witness statement until the very last minute; and it had contained fresh allegations which only Miss Dykes could answer at a time when he, having served his witness statement late, was aware that she would not be able to attend the hearing.
28. We do not think the Tribunal has failed to explain or give adequate reasons in relation to those three matters. We think the findings made sufficiently speak for themselves. But they are in themselves relative matters of detail which, in all probability, pale into insignificance against the overall finding that the proceedings were misconceived.
29. Today Mr Towu in his submissions has raised with us some further points. A particular point which he makes is that he did not have (prior to the conclusion of the hearing) any, or any adequate warning as to the likely award of costs. He makes reference to Gee v Shell UK Ltd [2003] IRLR 32and to earlier authority cited in that case. He says that there was no pre-hearing review; no application for a costs warning or deposit; no warning to him that legal advice was required. He submits conformably with Gee v Shell UK Ltd that Tribunals are intended to be friendly to accessible to lay-people who bring their own claims. We note those points. We say two things about them. The first is that they do not in themselves amount to a point of law or suggest an error of law in the Tribunal's Reasons, still less one that is pursued in the Notice of Appeal. The second is this: that Mr Towu is himself a professional man. He had already brought one Tribunal claim. The desirability of obtaining independent advice before pursuing claims of this kind which are inevitably expensive and time-consuming for all concerned, should have been apparent to him; all the more so when the allegations that he was making were allegations of some seriousness – allegations of discriminatory conduct by fellow professionals and people in senior positions within the Trust. No error of law in our judgment is demonstrated by any of the further submissions that Mr Towu has made to us today.
30. For these reasons we have reached the view that there is no error of law in the Tribunal's decision. If there is no error of law we have no grounds for interfering with it, and the appeal will be dismissed.