Mr K Paul v Royal Mail Group - Royal Mail Relay - Kings Hill Business Park: 1306525/2023
EMPLOYMENT TRIBUNALS
Case No 1306525/2023
Between
Mr K PaulClaimantRoyal Mail Group - Royal Mail Relay - Kings Hill Business ParkRespondent
Before
Employment Judge ChildeMr Harding (instructed by Counsel) for claimantMs Percivel (instructed by Solicitor) for respondentDate 3 June 2024
JUDGMENT
The judgment of the Tribunal is as follows: Unfair Dismissal[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.[2]The parties have agreed the ACAS uplift in paragraph 3 below.[3]The respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and it is just and equitable to increase the compensatory award payable to the claimant by 25% in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992. Case Number: 1306525 2023 2[4]The respondent shall pay the claimant the following sums:(a) A basic award of £6,494.15.(b) A compensatory award of £31,599.50 Note that these are actually the sums payable to the claimant after any deductions or uplifts have been applied.[5]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply.
REASONS
Relevant Law
[3]The power to award costs is contained in the 2013 Rules of Procedure. The definition of costs appears in rule 74(1) and includes fees, charges, disbursements or expenses incurred by or on behalf of the receiving party. Case Number: 1306525 2023 2[4]Rule 75(1) provides that a Costs Order includes an order that a party makes a payment to another party “in respect of the costs that the receiving party has incurred while … represented by a lay representative”.[5]The circumstances in which a Costs Order may be made are set out in rule 76. The relevant provision here was rule 76(1) which provides as follows: “A Tribunal may make a Costs Order or a Preparation Time Order and shall consider whether to do so where it considers that(a) …(b) any … response had no prospect of success;[6]The procedure by which the costs application should be considered is set out in rule 77 and the amount which the Tribunal may award is governed by rule 78. In summary rule 78 empowers a Tribunal to make an order in respect of a specified amount not exceeding £20,000, or alternatively to order the paying party to pay the whole or specified part of the costs with the amount to be determined following a detailed assessment.[7]Rule 75(1)(a) expressly provides that a costs order can be made in favour of a party who is ‘represented by a lay representative’. Such representation is defined by rule 74(3) as ‘having the assistance of a person who does not satisfy any of the criteria in rule 74(2), (i.e a legal representative and who charges for representation in the proceedings) — in other words, anyone charging for their services who is not a legally qualified and practising representative, as defined by rule 74(2).[8]The hourly rate of such representatives is capped for the purpose of assessing such costs: rule 78(2) combined with rule 79(2) provides that the applicable hourly rate should be no higher than the hourly rate used when calculating preparation time orders, which from 6 April 2023 to 5 April 2024 was £43 an hour.[9]It follows from these rules as to costs that the tribunal must go through a three-stage procedure (see paragraph 25 of Haydar v Pennine Acute NHS Trust UKEAT 0141/17/BA). The first stage is to decide whether the power to award costs has arisen, whether by way of unreasonable conduct or otherwise under rule 76; if so, the second stage is to decide whether to make an award, and, if so, the third stage is to decide how much to award.[10]The case law on the costs powers (and their predecessors in the 2004 Rules of Procedure) include confirmation that the award of costs is the exception rather than the rule in Employment Tribunal proceedings; that was acknowledged in Gee v Shell UK Limited [2003] IRLR 82.[11]The recent employment appeal Tribunal case of Mrs Melanie Carroll-Cliffe v Pembrey and Burry Port Town Council [2024] EAT 125, 2024 WL 03630811, which in turn refers to Radia v Jefferies International Ltd UKEAT/0007/18 provides guidance to the Tribunal’s in deciding costs application brought under rule 76 (1) (b). Case Number: 1306525 2023 3[12]In paragraph 67 of Radia, referred to in Carroll-Cliffe, the EAT said Where the Tribunal is considering a costs application at the end of, or after, a trial, it has to decide whether the claims "had" no reasonable prospect of success, judged on the basis of the information that was known or reasonably available at the start, and considering how, at that earlier point, the prospects of success in a trial that was yet to take place would have looked.[13]And at 69 of Radia, Further, the mere fact that there were factual disputes, which could only be resolved by hearing evidence, and fact finding, arising from the final Hearing, does not necessarily mean that the Tribunal cannot properly conclude that the claim had no reasonable prospects from the outset, nor that it cannot conclude that the complainant could or should have appreciated this from the outset.
Introduction
[14]I had access to a bundle of documents which ran to 72 pages.[15]The claimant made oral submissions and the respondent relied on written submissions. Relevant Findings of Fact[16]Whilst it is not necessary for the tribunal to make any primary findings of fact to determine a costs application, I set out below the matters relevant to whether the respondent responds had no reasonable prospect of success. Any further matters that are relevant to my findings are set out in the decision section below.[17]Under rule 76(1)(b), the focus is on the response itself. The question is, under the first stage of the three-stage process, whether objectively the respondent’s response had no reasonable prospects of success. Case Number: 1306525 2023 4[18]Turning then to look at whether objectively the respondent’s response had no reasonable prospects of success. I find that, when viewed objectively, the respondent’s response had no reasonable prospects of success.[19]Turning specifically to the respondent’s pleaded defence:a. At paragraph 22 of the ET3, the respondent denied that the treatment of the claimant amounted to a breach of any express or implied term of the claimant’s contract of employment.b. This pleading objectively had no reasonable prospects of success because: i. The respondent required the claimant go back to work with Mr McBean, who had assaulted him, as far as the claimant knew without reprimand. ii. Mr Reilly had failed to deal with the claimant’s complaint of assault against Mr McBean adequately and had turned a blind eye to it.c. The information referred to in paragraphs b.i and b.ii above was available to the respondent at the point the defence were submitted. It should have been obvious from the documentation, including the flawed investigation, grievance outcome and choice of grievance officer, the photographic evidence of the assault and the clear decision of the respondent to require the claimant to work with Mr McBean, despite formal action having been taken against Mr McBean in connection with this incident (but the claimant not having been informed of this).d. The respondent had no reasonable prospect of showing that these two matters (those referred to at paragraphs b.i and b.ii above) did not Case Number: 1306525 2023 5 undermine the implied term of mutual trust and confidence between the parties.e. The respondent’s defence at paragraph 25 of the ET3 that even if there was a repudiatory breach, this was waived by the claimant due to the lapse of time between the appeal outcome on 2 February 2023 and the claimant’s resignation on 27 July 2023 had no reasonable prospects of success.f. This conclusion was based on an inaccurate statement in paragraph 9 of the ET3 that between the appeal outcome and the claimant’s resignation, the claimant continued working. In fact, the claimant was absent due to sickness at this time and did not return to work for the respondent before his resignation. This was known to the respondent. It should have been obvious to the respondent that the claimant did nothing in this period to suggest that he had waived the fundamental repudiatory breach of contract.g. The respondent’s defence at paragraph 26 of the ET3 that the claimant’s resignation was not in response to the breach of contract also had no reasonable prospects of success. The claimant’s resignation letter, the best evidence of the reason for his resignation, referred specifically to the reason for his resignation being the breaches of contract identified in his claim form and set out in paragraphs b.i and b.ii above.h. Finally, the respondent’s defence at paragraph 27 of the ET3 that the respondent had a fair reason for dismissal, namely some other substantial reason, had no reasonable prospects of success and indeed was abandoned by the respondent at the final hearing. Case Number: 1306525 2023 6[20]Mrs Percival criticises the claimant for not making a strike out application throughout the proceedings, in support of an argument that the respondent’s response did have reasonable prospects of success. However, as is recognised in paragraph 66 of Radia, the task carried out by the tribunal under the cost’s regime at rule 76 and the strike out regime at rule 37 is different. I find that just because an application for strike out was not made, this does not prevent the claimant from legitimately pursue an application for costs on the basis that the defence has no reasonable prospects of success. Should I exercise my discretion as to whether to actually award costs?[21]I have decided that this case has crossed the initial threshold into the respondent potentially being required to pay the claimant’s costs, or some of the claimant’s costs in this case.[22]I now carry out the second stage of my reasoning which is to look at whether it is appropriate to make such an award. As I have found in paragraph 19, the respondent either knew or was reasonably expected to have appreciated that their defence had no reasonable prospects of success at the point the ET3 was lodged.[23]Having reached this conclusion and adding to this the fact that the respondent has been legally represented throughout this case, I find that I should exercise my discretion to award costs in favour of the claimant. What sums should be awarded?[24]I find that the respondent’s case had no reasonable prospects of success from the outset of this claim and certainly from when the ET3 was submitted. Case Number: 1306525 2023 7[25]The costs incurred by the claimant from the outset of his claim are said, in the claimant’s statement of costs document, to be £16,740. They included an hourly rate for Mr Ram of £75 per hour and do not include VAT for counsel’s fees.[26]Neither the amount of work done by those representing the claimant or the figure for costs claimed, is challenged by the respondent in their written submission.[27]The claimant clarified he was not legally represented by Mr Ram, as defined in Rule 74. I conclude that Mr Ram is therefore to be treated as a lay representative. Accordingly, Mr Ram’s hourly rate was limited between April 2023 and April 2024 to £43 per hour. This was agreed by the parties.[28]Taking the above into consideration, I have awarded costs in favour of the claimant in the sum of £15,800. This figure has been calculated as follows:a. 104 hours of the claimant’s lay representative’s time @ £43 per hour = £4,472. The parties agreed with the total hours worked by the claimant’s lay representative and the hourly rate.b. PLUS Counsel’s fees of £11,328. This included £9,440 of counsel’s fees plus 20% VAT. These figures were all agreed by the parties.[29]This sum must be paid to the claimant on or before 7 October 2024. __________________________ Signed by: