United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr J Essein (The Appellant in Person)
For the Respondent	Debarred from proceedings


 


Summary

Practice and Procedure - Costs

Case remitted to ET on cost as reasons did not adequately explain its reasons as had insufficient evidence as to the overall level of costs as the costs expended by reasons of the Claimant's unreasonable behaviour.


 


HIS HONOUR JUDGE SEROTA QC

1. This is an appeal from a decision of an employment Tribunal at London (Central) chaired by Mr CA Carstairs on 26 August 2005 which was sent to the parties on 3 October 2005. The Respondent obtained an order that the Claimant pay a sum of costs assessed in the sum of £4000. The Respondent has been debarred from defending this appeal. The claims result from what is said to be the constructive dismissal of Mr Essien on 18 August 2004. He also made claims for unfair dismissal, discrimination on the grounds of race, subsequently amended to racial harassment, unlawful deductions from his pay and holiday pay.
2. We do not think it necessary for us to go into a great deal of detail as to the underlying dispute between the parties. The Claimant was a Chef working for the Respondent until his dismissal and termination of his employment in August 2004. The circumstances relating to his dismissal also included an allegation that he had been guilty of criminal damage and that he had broken a pane of glass at the Respondent's public house. He in fact was convicted of criminal damage in the Magistrates' Court and when the matter first came before the Employment Tribunal, I believe in October 2004, we could be wrong we think it may have been April 2005 it matters not, it was necessary for the proceedings to be adjourned because the question as to whether there had been a conviction was regarded as most important in determining the issues before the Employment Tribunal and there was an outstanding appeal to the Crown Court. The Employment Tribunal considered that the matter should never have come before them on this occasion and that an application should have been made for an adjournment. The fault for that perhaps lay not with Mr Essien but with his Solicitor. The matter came back and there was a six day hearing in August 2005 when Mr Essien's complaints of racial harassment were dismissed, but he was found to have been unfairly dismissed, subject to a 25% deduction for contributory fault. He was awarded some £3348.75 in respect of compensation for unfair dismissal, £750 in respect of arrears of holiday pay, unauthorised deductions of £151.46 and further holiday pay of £1000.
3. The Tribunal was fairly critical of the way in which the hearing before the Employment Tribunal had been conducted, and again it is right to say the fault for this must lie not so much with Mr Essien as with his Solicitor and at the end of the day an application for costs was made. We will come onto this shortly but the net result was, that an application for costs by Mr Essien was dismissed. However, he was ordered to pay some £4000 towards the Respondents costs, that is the subject matter for this appeal.
4. The judgment of the Employment Tribunal was perceived to be somewhat inadequate for reasons which we will come onto, in that a number of relevant findings were not referred to and on the 16 December 2005, HHJ Clark referred the matter back to the Employment Tribunal for further information and it is right to say, that certainly, so far as we are concerned, we have not seen any further information from the Employment Tribunal that is of any real assistance in this matter. HHJ Clark, therefore, referred the matter to a preliminary hearing which came in front of an Employment Appeal Tribunal presided over by HHJ Altman on 12 April. They referred the matter to a full hearing. The Respondent does not appear to have taken any part in these proceedings and the Registrar, on 7 June, ordered that unless an answer was lodged within seven days, that is by 13 June, it should be debarred from the hearing and the debarring order was made.
5. We have not seen a skeleton argument from Mr Essien who has appeared today in person, but from the Notice of Appeal which was prepared, I believe on his behalf, the points are made firstly, that the Employment Tribunal failed to explain how the sum of £4000 was calculated and the Employment Tribunal had further failed to differentiate, between his conduct and that of his solicitor, or explain why an order was made against him. It right to say of course that the Employment Tribunal does have jurisdiction in any event to make an order for costs, where costs are wasted by reason of the conduct either by the party or the party's legal representative.
6. When the matter came before HHJ Altman, he pointed out a number of matters, firstly, that the Employment Tribunal had not considered what conduct was referable to the Claimant and what to his legal advisors; secondly that the Employment Tribunal does not appear to have given any reasons as to why it considered the £4000 ordered as being reasonable and proportionate. It did not explain how the £4000 reflected the costs that were attributable to unreasonable behaviour and how much to the overall costs. There is a further point and this is perhaps a matter of rather greater significance, and that is on the construction of regulation 14 of the 2001 Employment Tribunal constitution Regulations 2001 which were relevant to these proceedings:-

"Where in the opinion of the Tribunal a party has in bringing the proceedings, or a party or a parties 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 that but by another party…."

7. We are not sure whether in fact the regulation being applied by the Employment Tribunal did, as the new regulations do, entitle the Employment Tribunal to take into account the means of the Respondent. In its decision (see paragraphs 2(20),(21),(22),(25) and (27)) the Employment Tribunal made a number of findings in relation to delay, largely the responsibility, let it be said, of the Claimant's legal advisors. They were therefore amply entitled to make an order for costs; they were amply entitled to find that the hearing in April 2004 should never have taken place and that the conduct of the Claimant's legal advisor had led to some 3 hours being lost during the hearing in July 2005. However, it seems to us that for the reasons we have set out earlier, the Employment Tribunal failed to give an adequate explanation as to how it reached the sum of £4000. To say that it adopted a rough and ready approach in our opinion is no substitution for making proper enquiries as to the level of costs and ascertaining the extent of costs which had been wasted by the April hearing and the 3 hours lost during the course of the 6 day hearing in July.
8. Furthermore the Employment Tribunal, we think, should have explained to what extent it regarded the Claimant as responsible for the costs as opposed to his legal advisor and it would have been helpful as Judge Altman pointed out and again we think necessary, for the Employment Tribunal in coming to its conclusion to have worked out what proportion of the costs that were being claimed, reflected the costs attributable to unreasonable behaviour and what reflected the overall costs. In all the circumstances of the case therefore we consider that the appeal should be allowed and the matter remitted to the Employment Tribunal for reconsideration, in accordance with this judgment. It would be necessary for a transcript of this judgment to be obtained.