Appeal No. UKEAT/0125/12/MC
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
25 June 2013
Before
HIS HONOUR JUDGE SEROTA QC
MR D J JENKINS OBE
MRS M V McARTHUR FCIPD
MS
A GHOSH APPELLANT
NOKIA
SIEMENS NETWORKS UK LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
RACE DISCRIMINATION – Direct
The Employment Tribunal’s exercise of its discretion in
ordering the Claimant to pay costs of £5,000 to the Respondent on the basis
what it found to be her unreasonable conduct of the proceedings could not be
faulted.
HIS HONOUR JUDGE SEROTA QC
1.
This is the hearing of an appeal in relation to a costs order in the sum
of £5,000 made in favour of the Second Respondent against the Claimant at a remedies
hearing in Southampton before Employment Judge Kolanko, who sat with lay
members. The Claimant in the skeleton argument of 25 June has dwelt on the
factual merits of her case both in relation to liability and remedy and has
given the impression that she was in a position to re-argue those matters
today. In fact, as I have said, the appeal is limited to the question of costs
for reasons that I shall shortly come to.
2.
During the course of her submissions the Claimant has constantly wanted
to refer to her version of factual events and has been reluctant to accept that
we are unable to re-visit factual findings of the Employment Tribunal in the
light of the fact that her appeals against those matters have been dismissed.
3.
It is perhaps helpful, therefore, to refer at this stage to the
procedural history. The liability judgment of the Employment Tribunal is dated
6 January 2011. The Claimant had brought claims for discrimination on the
grounds of her race against her line manager, Mr Peter Hellmonds and
the Second Respondent, her employer Nokia. She had also commenced proceedings
for unfair dismissal. The Employment Tribunal dismissed the claims based on
allegations of discrimination but found that the Claimant had been unfairly
dismissed. It directed a remedy hearing.
4.
I think it was on 1 June 2011 that the matter came before
Keith J, who directed the Employment Tribunal to supply further
information. The remedy hearing took place on 2 February 2012. On
that occasion the Employment Tribunal did not consider it just and equitable to
make either a basic or a compensatory award and, as we have mentioned, awarded
£5,000 costs against the Claimant in favour of the Second Respondent. The
Claimant appealed. Her appeal was presumably ruled upon by one of our
colleagues under rule 3(7) and there was a preliminary hearing before
HHJ McMullen QC on 22 June. We have a transcript of his decision but
the Judgment is dated 25 July. HHJ McMullen dismissed all grounds of
appeal in relation to remedy and in relation to liability save the costs issue,
which he referred to a full hearing, with which we have been dealing today.
The other grounds related to discrimination on the grounds of race, unfair
dismissal and the Polkey deduction.
5.
The proceedings in the Employment Tribunal took, I believe, about nine
days and there is no doubt that the preparation and the costs of these
proceedings for the Respondent, albeit a substantial company, have come to
significant amount. On purely pragmatic grounds, and in order to avoid a
hearing today, the Respondent wrote to the Employment Appeal Tribunal on
31 July stating it would not enforce the order for costs - that remains
the position - and it asked the Claimant to withdraw the appeal in those
circumstances. The Employment Tribunal wrote to invite a comment from the
Claimant on 1 August. So far as I know there has been no response to
this. The Respondent made it clear it was not going to participate in the
proceedings and, indeed, on 10 August was debarred from doing so. The
matter does not end there because the Claimant appealed against
HHJ McMullen’s order to the Court of Appeal, which on 26 February of
this year refused the Claimant’s permission to appeal.
6.
I shall say something briefly about the factual background. The
Claimant is described in the proceedings as a UK national of Indian origin.
She was employed by the Respondent from 2004 until August 2009. I am not
certain in what position she was employed but it was a relatively senior
management position. She had occasion to complain about discrimination on the
grounds of race and harassment at the hands of the First Respondent, who was at
one time her line manager. She also complained of unfair dismissal.
7.
She has some history of employment disputes. In 2007 she had lodged
grievances on the grounds of discrimination, which were dismissed; she had
also, at about this time, been made subject to disciplinary proceedings and was
suspended. I do not know whether she returned to work or not. In her previous
employment she had also lodged grievances alleging discrimination on the
grounds of sex, race and victimisation against ten senior employees of her past
employer.
8.
To take matters very shortly, relations between the Claimant and the
First Respondent, Mr Hellmonds, became very strained. One of the issues
appeared to be that the Claimant took a trip to India for some five weeks,
which Mr Hellmonds maintained was unsanctioned. The Claimant asserted
that approval had been given. This led together with other matters to a
breakdown in the trust and confidence between the Claimant, Mr Hellmonds,
and ultimately the Respondent, Nokia. The details do not matter; however, I do
note that the Claimant’s account of approval having been given was rejected by
the Employment Tribunal. Disciplinary proceedings were taken against the
Claimant who was dismissed for what is in shorthand referred to as SOSR, ‘some
other substantial reason’, on 9 July 2009. The substantial reason
was the breakdown in trust and confidence between the Claimant and
Mr Hellmonds and the Respondent.
9.
However, during the course of the dismissal proceedings the dismissing
officer, Mr Greatorex, decided to make enquiries of previous managers of
the Claimant and he received highly critical views about the Claimant which he
took into account. However, he had never communicated to her the fact that he
had spoken to and effectively taken information from the Claimant’s previous
managers so the Claimant was not in a position to challenge the allegations
made against her.
10.
The Employment Tribunal went through the various allegations of
discrimination raised by the Claimant. We note that it is generally considered
extremely unpleasant to have allegations of racial discrimination made against
an employee; it is a serious matter. Suffice it to say that every allegation
made by the Claimant was roundly rejected. For example, if one turns to the
decision of the Employment Tribunal at paragraph 15 one finds that this is
in relation to an allegation that the Claimant had been refused an adjustment
in her salary:
“The Claimant has failed to raise even a prima facie case in
Mr Hellmonds’ treatment in relation to this matter was potentially
discriminatory on the grounds of her race. According, we dismiss this
complaint.”
11.
At paragraph 18 in relation to certain absences and leave, the
Employment Tribunal found that the Claimant had failed to establish any less
favourable treatment from which a Tribunal could conclude, absent an
explanation from the Respondent, that it was discriminatory. It noted that
there was no legitimate basis for the Claimant seeking information beyond that
which was currently available to her then going on to paragraph 19 in
relation to the alleged exclusion of the Claimant from certain meetings:
“The Claimant we find has failed to establish any less
favourable treatment in this regard let alone less favourable treatment that a
Tribunal could conclude absent an explanation from the Respondent that this was
discriminatory.”
12.
At paragraph 20, in relation to an allegation that the Claimant was
required to produce unjustified and disproportionate monthly reports of annual
leave. The Employment Tribunal said it had:
“[…] come to the clearest conclusion that the Claimant fails to
establish any less favourable treatment in this regard let alone less
favourable treatment that a Tribunal could coincide absent an explanation from
the Respondent was discriminatory.”
13.
Item 6 of the complaints was that the Claimant maintained that
various comments with racial overtones were made by fellow employees about her
accent and her origin. The Employment Tribunal rejected the Claimant’s
evidence in this regard. It noted that the Claimant’s evidence to the
Employment Tribunal was not consistent with her witness statement. And the
Employment Tribunal was wholly satisfied that the comment allegedly made by
Mr Hellmonds had not been made. The Claimant’s behaviour immediately
thereafter was quite inconsistent with her anticipated response had such
demeaning comments been made by Mr Hellmonds. And, again, the Employment
Tribunal concluded that not even a prima facie case has been made out.
14.
At paragraph 27, again, in relation to an alleged disproportionate
and unfavourable performance review, the Employment Tribunal again found that
the Claimant had not established the primary facts for any less favourable
treatment. At paragraph 28 there was an issue as to whether or not the
Claimant was told at a meeting that her employment would be terminated. The
Claimant maintained this is what she had been told by a Mrs Bates.
Mrs Bates denied this. The Employment Tribunal found that at no time
during the meeting was the Claimant’s employment terminated by Mrs Bates.
Again, the Claimant had failed to raise a prima facie case.
15.
Paragraph 3; it was asserted that previously resolved issues raised
against Ms Ghosh were used as factors resulting in her termination. The
Employment Tribunal found that these matters were not well founded and did not
indicate any less favourable treatment. There were no issues that could
properly be said to have been previously resolved. There was no substance in
the Claimant’s allegation she had been shouted at and insulted by
Mr Hellmonds during a meeting on 24 July when she was dismissed. She
then complained that she was dismissed for untrue reasons. The reasons given
were, as I have said, the breakdown of trust and confidence. The Employment
Tribunal listened to a three‑hour tape of that meeting because
Mr Greatorex’s conduct was criticised and the Employment Tribunal, having
listened to the tape, rejected unequivocally the suggestion that
Mr Greatorex’s conduct at the hearing could have been said to be improper
in any way. The Claimant had simply failed to establish the primary facts of
less favourable treatment on the grounds of race.
16.
In relation to allegation 13: post dismissal unfavourable performance
evaluation. The Employment Tribunal rejected this claim and claims of any
direct discrimination or harassment made against either Mr Hellmonds or
the company. The Employment Tribunal at paragraph 38 said:
“In view of the evidence we heard relating to the various
complaints of discrimination, we should record that we were impressed with the
manner in which Mr Hellmonds conducted himself throughout ellmonhis dealings with the Claimant.”
17.
At paragraph 39 they found in contrast to the way in which
Mr Hellmonds behaved the Claimant was ready to challenge him “on a regular
basis”. ellmonThe Employment Tribunal was:
“[…] wholly satisfied that the clear breakdown in the
relationship between the Claimant and Mr Hellmonds was wholly the fault of
the Claimant. We find that the complaints of discrimination which she has
brought primarily against Mr Hellmonds were wholly unmerited, and we found
the evidence she presented to the Tribunal on such matters wholly
unconvincing.”
18.
The Employment Tribunal then turned to consider the question of unfair
dismissal. We can deal with this, I hope, fairly shortly. The Employment
Tribunal accepted that there had been a breakdown in the trust and confidence
and that this was potentially a fair reason for dismissal for some other
substantial reason. The Claimant’s criticism of the impartiality of
Mr Greatorex was wholly unfounded and there was ample material before
Mr Greatorex which justified his belief that there had been a breakdown in
trust and confidence occasioned by the Claimant.
19.
However, the Employment Tribunal considered that the dismissal was
unfair. The reason the dismissal was unfair because, as we have already
mentioned, Mr Greatorex received information from other managers which was
highly critical of the Claimant and she had no opportunity to challenge.
20.
We now turn to the remedy judgment. The Claimant disputed the accuracy
of what Mr Greatorex had been told by other managers, which, as we have
said, was highly critical of the Claimant, but the Employment Tribunal (see
paragraphs 13 and 14) concluded that Mr Greatorex faithfully recorded
the comments made by those managers and had no reason to doubt what appeared to
be the consistent comments made by them. Any representations made by the
Claimant at a reconvened hearing would not have prompted Mr Greatorex to
change his mind or decision in relation to the Claimant’s dismissal which would
in the judgment of the Employment Tribunal have been fair. The Employment
Tribunal noted it was not relevant. It was common ground the Claimant came to
Mr Hellmonds’ department having been suspended from her previous post for
alleged misconduct matters.
21.
The Employment Tribunal then went on to consider the question of
compensation. It drew attention to section 122(2) of the Employment Rights
Act 1996, which refers to the power of an Employment Tribunal to have
regard to a Claimant’s conduct being such it would be just and equitable to
reduce the amount of a basic award to permit the Tribunal to do that. The
Employment Tribunal repeated what it had said in the liability judgment that it
was wholly satisfied the clear breakdown in the working relationship between
the Claimant and Mr Hellmonds was wholly the fault of the Claimant and it
satisfied the Employment Tribunal that the disciplinary process and the Claimant’s
eventual dismissal was wholly on account of the Claimant’s conduct before the
dismissal. This is a case, says the Tribunal, where it was satisfied it would
be neither just nor equitable to make any basic award in favour of the Claimant
in such circumstances. The Employment Tribunal went on to make a similar
finding in relation to the compensatory award.
22.
The Employment Tribunal then turned to deal with the issue of costs (see
paragraph 17). In paragraph 17 it set out the submissions of the
parties. Mr Perhar, who appeared on behalf of the Respondent, drew
attention to the Judgment in Daleside Nursing Home Ltd v Mathew
[2009] UKEAT/0519/08 in which Wilkie J had suggested that in a case where
allegations made by a party are found to be wholly false, it might be perverse
for a Tribunal to fail to conclude that the making of such false allegations
did not constitute a person acting unreasonably.
23.
The Claimant submitted that she honestly believed in the complaints she
had made and they were not made for any perverse motive; she relied on the
facts, she had sought legal advice and at no time did her legal advisers
indicate that her claim was unfounded. This further proof of the fact that she
had believed in the substance of her complaints was taking the matter further
before the Employment Appeal Tribunal. We have noted that she also, in fact,
took her complaint to the Court of Appeal. We note that the Employment
Tribunal was not saying that it accepted the submission of Mr Perhar, nor did
it state specifically whether it accepted or rejected the Claimant’s case that
that she honestly believed in the complaints. Indeed, it might fairly be said,
having regard to the other findings of the Employment Tribunal, that it may
have doubted this.
24.
At paragraph 21 the Employment Tribunal correctly directed itself
in relation to rule 41 of the 2004 Employment Tribunal’s Rules of Procedure.
Rule 41(2) was set out:
“[…] a Tribunal shall consider making a cost order against a
party where in the opinion of the Tribunal any of the circumstances in
paragraph (3) apply, and having so considered the Tribunal may make a cost
order against the paying party if it considers it appropriate to do so.”
25.
The Employment Tribunal then drew attention to paragraph (3) which
described the circumstances when a Tribunal should consider making a cost
order, and these included when a paying party had in bringing proceedings or in
conducting the proceedings acted unreasonably. It also drew attention to rule 41
which deals with the amount of costs and the fact that an Employment Tribunal
might have regard to the paying party’s ability to pay when considering whether
it should make a costs order or how much the order should be.
26.
Paragraph 22 is the most important finding and I shall read it out
in full:
“We remind ourselves that the Claimant has made a series of
serious allegations against the Respondent and in particular her line manager
Mr Hellmonds. We have rejected these allegations fully. We have
concluded that Mr Hellmonds the primary subject of the Claimant’s
complaints had been, throughout his time as the Claimant’s manager, wholly
supportive of the Claimant, and had managed her with sensitivity at all times.
We are satisfied that the pursuit of these serious claims primarily against
Mr Hellmonds which we have rejected constitutes wholly unreasonable
conduct.”
It then went on to note:
“[…] that an award of £10,000 would be wholly inadequate in the
context of reimbursing the Respondent for the costs it has had to incur in
defending [what it described as] these
unmeritorious claims, which has taken a considerable amount of time both in the
context of preparation and the conduct of nine Tribunal hearing days.”
27.
The Employment Tribunal did take into account the Claimant’s means, or rather
lack of means, and limited the amount she was directed to pay to £5,000. We
note, as the Claimant pointed out, there is no express finding that the
Claimant was dishonest. Equally, there was no finding that the Claimant did
genuinely believe in the matters which she complained and we note, from the
passages to which we have referred, that the Employment Tribunal specifically
rejected the Claimant’s evidence on a number of factual matters.
28.
The Claimant’s submissions. Despite frequent admonitions from this
Tribunal, the Claimant insisted on trying to challenge factual findings, for
example, she asserted that the Employment Tribunal had recorded things in the
Judgment which were not true and that she had been the victim of procedural
unfairness. We asked her why she was pursuing the appeal when the Respondent
had made clear it would not be seeking to enforce the order for costs and her
answer was that she wanted to establish she had not behaved unreasonably.
29.
She submitted in some way that the hearing of the remedy hearing so long
after the liability hearing rendered factual findings unsafe. This was an
argument which, in our view, is not open to the Claimant, but even if it were
we would reject it. The Claimant criticised the Employment Tribunal for saying
that Mr Hellmonds was supportive of her and she took us, for example, to
paragraph 44 of the liability decision, which she submitted showed
contrary to the finding of the Employment Tribunal (paragraph 22 of the remedy
hearing), showed the contrary. However, there are a number of references to
the Employment Tribunal to the manner in which Mr Hellmonds dealt with the
Claimant who was an obviously challenging subordinate. She told us that her
human rights were violated and it was unfair. We asked her why. The only
answer that the Claimant appeared to give was that the proceedings were unfair
because the Employment Tribunal accepted the Respondent’s case and rejected
hers. That does not, in our view, amount to a breach of her human rights.
30.
The Employment Tribunal, she submitted, proceeded on the basis it would
be perverse not to award costs. However, as Mr Jenkins pointed out during
the course of submissions, the Employment Tribunal was not adopting the
submission of Mr Perhar, it was simply setting it out, and the approach of
the Employment Tribunal to the award of costs was wholly conventional after a
correct self direction. It asked: was the Claimant’s conduct unreasonable? It
concluded that it was and then considered the exercise of its discretion and
concluded that it was appropriate to exercise its discretion and make an order
for costs. The Employment Tribunal took her means into account and made a very
modest award. Finally, and towards the end of her submissions, the Claimant
did not make what might be regarded as a proper point. She said: “Just because
I lost my case that does not mean I was unreasonable”. She went on to submit
that the case set a precedent for making a costs order just because a party has
lost and that would discourage other people from bringing claims.
Conclusions
31.
The exercise of the costs jurisdiction is discretionary once the
threshold of unreasonable conduct is crossed. In the light of the Respondent’s
concession we could see little point in pursuit of this appeal. The Claimant
might wish to establish that for costs purposes she did not act unreasonably
but the findings against her in the liability hearing, which are significantly
damaging to her, remain in place in any event. In this case the Employment
Tribunal was well entitled to find that the Claimant’s conduct was
unreasonable. There were a large number of allegations of discriminatory
conduct - serious allegations, we say - which were rejected. Some were
rejected on the basis that what the Claimant asserted had happened had not in
fact happened. The Claimant’s conduct in the proceedings and making these
unsustained allegations was undoubtedly capable of amounting to unreasonable
conduct.
32.
In the circumstances, the Employment Tribunal was entitled to conclude
that the number of wholly unsubstantiated allegations against a manager who in
fact was supportive of her, that put the Claimant to great expense at the nine‑day
hearing, plus the considerable preparation, justified it in exercising its
discretion to make the order that it did. The suggestion that the order that
we have made will somehow discourage litigants from pursing cases is wide of
the mark. The only litigants who might be discouraged are those who are
tempted to behave unreasonably. In all the circumstances, we consider that
this appeal is without merit and it is dismissed.
