United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SEKAR (of Counsel) Instructed by: Messrs Gani & Co Solicitors 496 Brixton Road London SW9 8EQ
For the Respondent	MR ANDREW BURNS (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 100 Fetter Lane London EC4A 1BN


 


SUMMARY

Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke – Costs

Substantive appeal on fact only. Costs appeal allowed; ET failed to properly consider 2-stage approach.


 


HIS HONOUR JUDGE PETER CLARK

1. The parties in this matter, which has been proceeding in the London Central Employment Tribunal, are Mr Walker, the Claimant, and Royal Brompton & Harefield NHS Trust, the Respondent. I shall so describe them. On 12 February 2008 we heard 2 appeals brought by the Claimant. The main appeal, which came before this full division for preliminary hearing with both parties represented, is against the substantive judgment of an Employment Tribunal chaired by Employment Judge Buckley sitting over 7 days, with 2 further days deliberating in private, in May/June 2007. That reserved judgment, dismissing his claims of unfair constructive dismissal, disability discrimination and harassment, post-termination discrimination and breach of contract, (which claim was withdrawn) was promulgated with reasons on 24 July 2007. The second appeal is against a costs order made by Employment Judge Carstairs, sitting alone on 3 November 2006 at a costs hearing following a PHR held on 9-10 August 2006. That appeal was originally rejected by HHJ Burke QC on paper under EAT Rule 3(7) by letter dated 6 February 2007. However, at a hearing held under Rule 3(10) on 4 July 2007 Burton J permitted the costs appeal to proceed to a preliminary hearing after determination by the Employment Tribunal of the substantive issues. At a preliminary hearing before me held on 10 January 2008 I directed that the costs appeal proceed to a full hearing to be heard by me sitting alone on the date fixed for the preliminary hearing of the main appeal, 12 February. I also varied the order of Keith J dated 5 December 2007 to permit the Respondent to attend the preliminary hearing and make oral representations. In the event Mr Sekar has appeared on behalf of the Claimant in both appeals and Mr Burns on behalf of the Respondent. Having heard argument the main appeal was dismissed and the costs appeal was allowed. Counsel then indicated that neither required a reasoned judgment. However, solicitors acting for the Claimant applied for a reasoned judgment within the 14 days provided for by Rule 23(2). Those reasons, in both appeals, now follow.

Background

2. The Claimant commenced employment with the Respondent as a Desktop Analyst in December 1998. In August 1999 he was appointed NT Server Manager. In that role he was the subject of management concerns over his performance, leading to a disciplinary hearing before Mrs Champion on 17-18 February 2005. The general nature of the charges against him were, first that he failed to respond to and act upon management requests; secondly, his failure to attend work on time and thirdly his failure to deliver projects within an acceptable and agreed timescale. An investigation report by his then manager, Mr Chachamu, concluded that the Claimant was undermining the work of his Department; that he was uncooperative and unreliable and that his behaviour was disruptive. The report set out a number of specific instances leading to those conclusions. Having considered that report and following the disciplinary hearing Mrs Champion issued to the Claimant a first written warning. Against that decision the Claimant appealed, but before it was heard by the Director of Operations, Mr Mitchell on 2 June 2005 the Claimant had resigned from his employment on 21 May. A further disciplinary investigation was discontinued following his resignation. Meanwhile, on 8 July 2004 the Claimant raised a grievance against Mr Chachamu and Mr Everson (Head of Information, Services & Telecommunications). He accused them of a sustained campaign of bullying and harassment. He raised a second grievance on 15 December 2004. Both grievances were rejected and an appeal against the rejection of the second grievance under the modified grievance procedure, was finally dismissed on 9 January 2007.
3. The Buckley Employment Tribunal carried out a careful assessment of the Respondent's complaints about the Claimant's performance and attitude. They accepted the Respondent's case; that he failed to comply with direct instructions (reasons, para 5.14) and that he persisted in his lack of punctuality (para 5.19). They found (para 5.23) that there was no evidence of bullying and harassment by his line managers (we take that to mean that the Employment Tribunal was not satisfied that the Claimant made out his complaints of bullying and harassment); further, they did not accept that the Claimant's unsatisfactory performance was related to his disability, namely stress and depression (para 5.25).
4. Based on their findings of fact the Employment Tribunal considered each of the Claimant's complaints and rejected them.

The Main Appeal

5. Mr Sekar, whose industry cannot be faulted, has drafted detailed amended grounds of appeal, supplemented by a skeleton argument extending to 70 pages and lengthy oral submissions. Mr Burns' principal submission, which we accept, is that the Claimant's case was rejected on the facts. There is no error of law in the Employment Tribunal's approach. Sufficient reasons for their decisions on each material issue have been given. The law has been correctly applied to the facts as found and a reasoned, permissible conclusion reached. Accordingly the appeal fails at this preliminary hearing stage.
6. We do not propose to rehearse the arguments advanced by Mr Sekar. We have considered them and reject them. We are satisfied that the substantive decision bears scrutiny. We cannot retry the facts. There are no grounds on which this appeal Tribunal can interfere with the Buckley Tribunal's judgment.

The Costs Appeal

7. The principal point on which I required full argument in this appeal was the submission by Mr Sekar that in ordering the Claimant to pay costs totalling £2,700 in respect of his unreasonable conduct, identified in the Costs Order reasons dated 28 November 2006, the Employment Judge had failed to adopt the now well-established 2 stage approach; was the costs threshold triggered (it was; the Judge found, permissibly, that the Claimant was guilty of unreasonable conduct of the proceedings) and if so, ought he to exercise his discretion in favour of the Respondents by making an order?
8. As to the second stage of the process, the exercise of discretion, Mr Burns has not persuaded me that Judge Carstairs did exercise his discretion at para 3.6 of the costs reasons, where he said this:

"3.6 There is no doubt in my mind that the approach taken by the Claimant or his advisors was totally unreasonable to the extent that it is appropriate costs should be awarded against the Claimant…"

9. In these circumstances this appeal succeeds and the costs order is set aside.