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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Francois v Castle Rock Properties Ltd (t/s Electric Ballroom) (Practice and Procedure : Costs) [2011] UKEAT 0260_10_0504 (05 April 2011) URL: https://www.bailii.org/uk/cases/UKEAT/2011/0260_10_0504.html Cite as: [2011] UKEAT 0260_10_0504, [2011] UKEAT 260_10_504 |
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EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
Before
MS K BILGAN
CASTLE ROCK PROPERTIES LTD T/A ELECTRIC BALLROOM RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Costs
UNFAIR DISMISSAL – Compensation
1. Compensation. It is argued, in reliance on Melia v Magna Kansei Ltd [2006] ICR 410, that the Employment Tribunal should have made an allowance for delay in payment of loss of earnings. This was, however, not argued below and no evidential foundation was laid for the making of such an award. This ground of appeal was dismissed.
2. Costs. The Tribunal awarded costs in the sum of £250 against the successful Claimant by reason of the conduct of her representative. There was no sufficient basis for the award in the reasons given by the Tribunal. The award is set aside.
HIS HONOUR JUDGE RICHARDSON
The Tribunal Proceedings
“3. The Claimant sought leave to add a claim that the Respondent's failed to provide written payslips contrary to Section 8 of the Employment Rights Act 1996 - this will be a new claim. There was no evidence whatsoever given to the Tribunal to justify why it was said that it was not reasonably practicable to have presented that complaint in time and leave to amend was therefore refused.
4. A considerable amount of time was taken up on the first day of the hearing dealing with objections by the Claimant to prevent the Respondent from relying upon supplemental witness statements served during the week before the Tribunal. Those witness statements consisted entirely of rebuttal evidence responding to matters which the Claimant had raised for the first time in his witness statement and which could not have been reasonably anticipated by the Respondent. The Claimant also applied to prevent the Respondent from relying on documents served after the conclusion of the inspection process. Namely, minutes of the meeting of 23 July (the appeal meeting); A notice to all security staff concerning dress, a signing in sheet for the day of the incident in question and an agency invoice and sheet from the wages records. The latter documents, having been posted to the Claimant on 27 January 2008.
5. It transpired that the Claimant's representative at the Tribunal had in fact attended with the Claimant at the appeal hearing and had herself made notes of the meeting held on 23 July (the appeal Hearing) which had not been produced in the disclosure process at all.
6. All of the documents were permitted to be viewed and relied on by the Respondents. The Claimant was offered time and the representative asked for 15 minutes adjournment to consider the minutes of the meeting of 23 July and to take instructions on them. This request was granted.”
“44. The Respondent's sought an order for their costs on the basis that the claim had been conducted unreasonably and that the race discrimination claim has been misconceived. That the claim should have been dealt with in one day but turned into a three day case. That prior to the hearing on the first day, the Respondent's had offered to settle the matter by offering £1,500 in settlement of the case. The Claimant's representative accepted that she was slow in presenting cases, that she needed time but did not consider that - that meant acting unreasonably or disruptively and that it would be unfair to award costs. Considerable time was in fact lost on the first day about the production of documents and the like. Further time was lost to enable the Claimant to arrange photocopy. All in all the tribunal considers that the Claimant's representatives conduct was unreasonable and seriously added to the length of the hearing. The Tribunal are only prepared to make an award of £250 to be paid by the Claimant to the Respondent as a contribution towards the Respondent's costs.”
Interest and late receipt of compensation
15. He founds his argument principally on Melia v Magna Kansei Ltd [2006] ICR 410. In that case the employee was unfairly dismissed in 2001. The Tribunal awarded him both past and future loss of earnings as part of his compensatory award. It discounted the future loss of earnings by 2.5% for accelerated receipt; but it made no equivalent adjustment to the past loss of earnings for delayed receipt. It was held by the Employment Appeal Tribunal that it should have done so. The Court of Appeal upheld the Appeal Tribunal in this respect. In a judgment with which Smith LJ and Wilson LJ agreed Chadwick LJ said:
“41. In my view, the appeal tribunal were entitled to reach that conclusion on the facts of this case. The task which an employment tribunal is set by section 123(1) is to assess the compensatory award in such amount as it considers just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal. In a case where the loss sustained by the complainant in consequence of the dismissal includes a loss of past earnings as well as a loss of future earnings, it seems to me just and equitable to treat the two losses in a consistent way. If loss of future earnings is to be discounted to reflect the early receipt of that money, so loss of past earnings should be increased to reflect the late receipt of that money. That, as it seems to me, is a conclusion to which the appeal tribunal were entitled to come; having in mind the overall requirement that the compensatory award should be an amount which the tribunal considers just and equitable.
42. It is important to keep in mind that interest is not awarded on the amount of the compensatory award. Rather, the tribunal takes into account in deciding what the amount of the compensatory award should be the fact that full compensation requires a recognition that money which is paid later than it should have been gives rise to a loss. In that context interest is a measure of the loss of the use of the money which the recipient should have had earlier.
43. It may be necessary, in a future case, to consider whether that approach should be adopted in circumstances in which the tribunal is not also awarding compensation for future loss. But in the present case the unfairness of the employment tribunal’s approach is very striking, and, as it seems to me, that was an unfairness which the appeal tribunal were entitled to redress.”
Costs
20. On this part of the case Mr Ohringer’s submissions may be summarised as follows.
21. Firstly he submits that the Tribunal erred in law, or failed to give sufficient reasons, in characterising the conduct of the Claimant’s representative as unreasonable. In particular, he submits that the Tribunal did not make sufficient allowance for the inexperience and limited resources available to persons who are acting not-for-profit or who are inexperienced. They may indeed be slower and less focussed than experienced legal representatives. They may be prone to misjudge the value of a particular point. Nevertheless they provide invaluable assistance to lay claimants. He relies upon the decisions of the Court of Appeal in Gee v Shell UK Ltd [2003] IRLR 82 and Lodwick v Southwark London Borough Council [2004] ICR 884.
“40(2) A tribunal or Employment Judge shall consider making a costs order against a paying party where, in the opinion of the tribunal or Employment Judge (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or Employment Judge may make a costs order against the paying party if it or he considers it appropriate to do so.
(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.”
25. In Gee v Shell UK Ltd [2003] IRLR 82 Sedley LJ stated:
“It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to people without the need for lawyers, and that – in sharp distinction from ordinary litigation in the United Kingdom – losing does not ordinarily mean paying the other side’s costs …. The governing structure remains that of a cost-free user-friendly jurisdiction in which the power to award costs is not so much an exception to as a means of protecting its essential character.”
(See also Lodwick v Southwark Borough Council [2004] ICR 884 at paragraph 23).