Appeal No. UKEAT/0438/10/RN
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
10 May 2011
Before
MR
RECORDER LUBA QC
BARONESS DRAKE OF SHENE
MR J R RIVERS CBE
MRS
S M ANDREW APPELLANT
(1)
EDEN COLLEGE
(2) MS F JACOBSON
(3) MS J RUTMERN RESPONDENTS
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE - Costs
The Employment Tribunal made a preparation time order in
favour of the successful unrepresented Respondents. Its calculations of the
time allowed, set out in its Reasons, clearly showed that it was including the
time for attendance of the Respondents and their witnesses at the
hearing notwithstanding the express terms of the last words of rule 42(3):
“… not including time spent at any hearing”.
Preparation time order set aside and remitted for reconsideration
by same Employment Tribunal.
MR RECORDER LUBA QC
1.
This appeal concerns the jurisdiction of an Employment Tribunal to order
one party to a hearing in proceedings before it to pay for the preparation time
incurred by another party. That jurisdiction is conferred by the Employment
Tribunal Procedure Rules 2004. We shall refer to the specific provision a
little later in our Judgment.
2.
In the instant case such an order was made by an Employment Tribunal
sitting at London East. By a decision promulgated on
31 December 2009 it ordered Mrs Andrew, who had been the unsuccessful
Claimant in proceedings before that Employment Tribunal to pay the Respondents
to her claim a sum of £3,944 in respect of preparation time. The Employment
Tribunal concluded that it derived jurisdiction to make such an order from its
finding that Mrs Andrew had been misconceived in the particular
circumstances of her case in continuing with the proceedings which had
culminated in a six‑day hearing before the Employment Tribunal.
3.
Mrs Andrew now appeals to this Employment Appeal Tribunal against
the Preparation Time Order and she has been represented, as she was in the
Employment Tribunal, by her husband, Mr Meenatchi‑Sundaram. He
presented a compendious Notice of Appeal, which after amendment comprises a 27‑page
document.
4.
The Notice of Appeal was carefully considered by
HHJ McMullen QC on the papers. He directed that, save for one aspect
of the grounds of appeal, the amended Notice of Appeal contained no arguable
error of law. It would accordingly go forward for determination on that one
aspect only.
5.
Mrs Andrew exercised her right to have that decision reviewed by
another Judge of the Employment Appeal Tribunal at a hearing. That hearing was
conducted by Cox J on 30 March 2011. She concluded, for reasons
given in a Judgment of which we have had the transcript, that the order made by
HHJ McMullen had been the correct order. We are told today that her order
has itself been made subject of a Notice of Appeal to the Court of Appeal.
6.
Accordingly, what comes before us for determination today is only the
one aspect of the Notice of Appeal which HHJ McMullen directed should be
considered at a full hearing. That aspect is the contention that the
Employment Tribunal erred in law: firstly, in making a Preparation Time Order
in respect of the attendance of Ms Jacobson, the Second Respondent, at the
substantive six‑day hearing before it; and secondly, in making a preparation
time award to the First Respondent, Eden College, in respect of the attendance
of its non‑party witnesses at that hearing.
7.
As Mr Meenatchi‑Sundaram accepts in his written skeleton argument
before us, in essence the point we have to consider is ground 5 of the grounds
of appeal distilled on the last page of his Notice of Appeal document. That
reads:
“The Tribunal had awarded the wrong amount under rule 42.
Or the Tribunal had no jurisdiction to award preparation time for attending the
Hearing under rule 42”.
8.
In his oral and written arguments Mr Meenatchi‑Sundaram has understandably
from time to time strayed well beyond the ambit of that ground as interpreted
by HHJ McMullen’s order. However, we have no jurisdiction to consider any
other matter than the matter which has been permitted to go forward for a full hearing.
9.
What the Employment Tribunal ordered in respect of preparation time is
clear from the terms in which the Tribunal expressed itself at
paragraphs 11 and 12 of its written reasons. Midway through
paragraph 11 the Tribunal say this:
“The Tribunal has decided that in the exercise of its discretion
it is reasonable to award the Respondent some of its costs associated with the
actual Hearing itself. Freda Jacobson clearly needed to attend throughout
but the Tribunal is not satisfied that all of the witnesses did. Further,
Freda Jacobson also had to undertake preparatory work before and during
the Hearing. Doing the best it can from the information provided the Tribunal
awards the following hours:-
48 hours claimed by
Freda Jacobson for attending at the Hearing.
48 Hours for
Freda Jacobson’s preparation for it.
One day (8 hours) for each of
the five witnesses, making a further 40 hours.”
10.
In paragraph 12 the Tribunal say:
“The Tribunal therefore awards the Respondents 136 hours in
preparation time @ £29 per hour, making a total of £3,944.”
11.
The extract from which we have read in paragraph 11 contains the
word ‘costs’ when the correct term, given the order eventually made, the context
of the rest of the decision and the jurisdiction that the Employment Tribunal
was exercising, was ‘preparation time’. Mr Meenatchi‑Sundaram has
suggested that the use of the word ‘costs’ rather than the use of the correct
term ‘preparation time’ revealed some misdirection or error of law on the part
of the Employment Tribunal. We reject that submission. We consider that in
the context of the written reasons as a whole this was simply an
inconsequential and inadvertent slip.
12.
What is plain is that in respect of the three elements of the
preparation time award, the first was for 48 hours in respect of the
Second Respondent’s attendance at the hearing, that is to say six
days at eight hours per day; the second was, as stated, purely for her
preparation; and the third was for the attendance of the First Respondent’s
witnesses at the hearing.
13.
The jurisdiction available to the Employment Tribunal in respect of
preparation time is contained in rules 42 to 47 of the Employment
Tribunal (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861).
Schedule 1 contains the procedure rules themselves and rule 42(3)
defines the term ‘preparation time’. It provides as follows:
“For the purposes of these rules preparation time shall mean
time spent by -
(a) the receiving party or his
employees carrying out preparatory work directly relating to the proceedings;
and
(b) the receiving party’s legal or
other advisers relating to the conduct of the proceedings;
up to but not including time spent at any Hearing.”
14.
On the express terms of that provision, it is tolerably clear that a Preparation
Time Order cannot be used to compensate a party or its employees for the time
actually spent in the hearing from which the preparation time award later
flows. Mr Meenatchi‑Sundaram submits in his written argument and
Notice of Appeal that the closing words of the sub‑rule, that is to say
the closing words of rule 42(3), apply to both limbs of it, (a) and (b).
We agree with that construction. Moreover, it is supported by the relevant
passage in Blackstone’s Employment Law Practice 2011 where the learned
editors write at paragraph 12(42): “In both cases, preparation time covers
that spent up to the hearing but not the hearing itself”. It follows, given
that the Employment Tribunal expressly made awards for preparation time under
the first and third elements of its findings for ‘attendance’, that this appeal
must be allowed in respect of those two items.
15.
The question arises as to how this appeal should be most justly disposed
of. Should we simply excise the first and third items and uphold a varied order
containing just the second, or should we remit the whole of the preparation
time award to the same Employment Tribunal to reconsider in the light of our
judgment? We invited Mr Meenatchi‑Sundaram to offer his submissions
one way or the other as to the correct disposal but he fairly indicated that he
was happy with either outcome.
16.
In deciding which course to follow we have reminded ourselves of the
terms of the Employment Tribunal’s Judgment, in particular paragraph 11 where
the Tribunal say:
“Further, Freda Jacobson also had to undertake preparatory
work both before and during the hearing.”
17.
It may be that the Tribunal there intended to make some award in respect
of her preparation time not while present at the hearing but during the hearing
in the sense of in between the six hearing days. It seems to us that that
suggests that the Employment Tribunal wished to take into account, or may have
wished to take into account, preparation time in the sense of preparation
undertaken outside of the Tribunal hearing rooms, over or between the days of
the actual hearing. We cannot be sure. However, in the circumstances it seems
to us that the fair and just thing to do is to set aside the decision of the
Employment Tribunal and remit to it for re‑determination the question of
the appropriate amount of time to be subject to a Preparation Time Order.
18.
Accordingly, our order will be that this appeal is allowed; the award of
preparation time by the Employment Tribunal is set aside; and, thirdly, that
the consideration of the application by the Respondents for payment for preparation
time shall be remitted for re‑determination by a Tribunal of the same
constitution.
