Mr HowardMs Luscombe-WattsIn person for claimantMr Roberts - counsel for respondentDate 23 September 2019
JUDGMENT
[1]The Claimant’s claim of automatic unfair dismissal, subject to s.100(1)(e) of the Employment Rights Act 1996, fails and is dismissed.[2]The Claimant is ordered to pay the Respondent’s costs, in the sum of £7,855. COSTS REASONS (Having been requested, subject to Rule 62(3) of the Employment Tribunal Regulations 2013)[1]By a judgment dated 23 September 2019, the Claimant’s claim for automatic unfair dismissal was dismissed. Respondent’s Application[2]Immediately following delivery of the Judgment, the Respondent applied for an order for costs, in the sum of £9,080, subject, firstly, to Rule 76(1) of the Employment Tribunal’s Rules of Procedure 2013, in that the Claimant’s claim had no reasonable prospects of success and/or it was unreasonable of him to raise and pursue it and secondly, also, Rule 76(2), due to the Claimant’s noncompliance with Tribunal orders. In respect of the latter point, it was stated that:a. The Claimant had failed to meet the deadline for disclosure of documents, of 8 July 2019, not doing so until 2 August.b. He had refused to exchange his witness statement, despite having already received the Respondent’s, only providing a statement at the outset of this Hearing.c. Despite being warned, in writing, against doing so by the Respondent’s solicitor, he introduced privileged content into his statement (as to offers made by the Respondent), having previously also done so in correspondence to the Tribunal.[3]Mr Roberts referred to an offer and ‘costs warning’ letter sent to the Claimant on 12 August 2019, in which, it was asserted, the basis upon which the Respondent believed that the claim had no reasonable prospects of success was set out and offering £2000, by way of pragmatic resolution of the matter, if the claim was withdrawn. It gave a reasonable estimate, at the time, as to likely future costs. The letter also advised the Claimant that he should seek independent legal advice on the terms of the letter.[4]The Claimant responded shortly afterwards, rejecting the offer and counteroffering for an approximate sum of £60,000, stating that he ‘had nothing to lose’ in continuing the proceedings.[5]In this Hearing, he, for the first time, made entirely unsupported allegations about some of the Respondent’s documents being fabricated. Claimant’s Response[6]The Claimant said that he had not been in UK all the time, thus reducing his ability to deal with this claim and medically ‘was in a very bad situation’, suffering from depression.[7]He had been unable to get legal advice.[8]He took this claim to stop the Respondent Company ‘abusing me and others’. The Law[9]The Tribunal reminded itself of the case of Kovacs v Queen Mary and Westfield College [2002] EWCA Civ 352 which indicated that ability to pay is not a factor which an employment tribunal is required or entitled to take into account when deciding whether or not to make a costs order. Yerrakalva v Barnsley Metropolitan Borough Council [2012] ICR 420 EWCA indicates that a tribunal has a broad discretion in such matters and in exercising that discretion should look at the ‘whole picture’ and ask whether there has been unreasonable conduct by the Claimant in bringing or conducting his claim and in doing so, to identify the conduct, what was unreasonable about it and what effects it had. While ability to pay is a factor that a tribunal may take into account, it is not determinative as to the amount of costs ordered. Arrowsmith v Nottingham Trent University [2011] EWCA Civ 797 states that (paragraph 37) ‘The fact that her ability to pay was so limited did not, however, require the ET to assess a sum that was confined to an amount that she could pay. Her circumstances may well improve and no doubt she hopes that they will.’[10]Kovacs v Queen Mary and Westfield College [2002] EWCA Civ 352 is also authority for the principle that rejection of an offer to settle can be unreasonable conduct.[11]Growcott v Glaze Auto Parts Limited [2012] UKEAT/0419/11/SM, which concerned a costs order following a costs-warning letter and a subsequent failed unfair dismissal claim. The EAT held that whether or not it was unreasonable for the Claimant in that case to pursue her claim, following receipt of a costs-warning letter was a question of fact and discretion for the Tribunal hearing the costs application. The EAT referred to the costs-warning letter sent in that case, as being set out in ‘accurate, straightforward and simple terms … (and that) it was wholly suitable to convey to any litigant the way in which the Employment Tribunal was bound to approach the forthcoming hearing … as being a fair and sensible warning to Mrs Growcott … that, if she continued to proceed with her claim, she would be running a risk as to an award of costs.’ Reasons for Costs Order[12]It is the Tribunal’s decision that it is appropriate, from the point at which the Claimant saw the costs-warning letter, to make a costs order in this case, for the reasons set out below. Mr Roberts confirmed that costs since that date amounted to £7,855, not including VAT.[13]We found the Claimant not to have been a credible witness, on the core issue in this case, whether or not he had been instructed by Mr Jeffrey to operate the Biesse machine. The Claimant appeared to us willing to say whatever was necessary in this Hearing, regardless of truth, to support his case. He will have known, from sight of the Response, over a year ago that the Respondent (in the person of Mr Jeffrey) was going to firmly deny any such instruction to him and that he had, otherwise, no corroborative evidence whatsoever to support such assertion, but continued nonetheless. His belated allegations about the Respondent’s documents being fabricated further damaged his credibility.[14]The Claimant’s response to the costs-warning letter was dismissive, in particular his use of the phrase that he ‘had nothing to lose’ by refusing the offer and carrying on, when the letter clearly indicated that he indeed might have ‘something’ to lose. He is a well-educated and clearly intelligent man, but he failed, unreasonably, to heed the detail set out in that carefully-worded letter, which was, we find, written in similar terms to that approved by EAT in Growcott. Had he given the letter proper consideration and accepted the offer (or made a more realistic counter-offer than he did), his claim may well have been settled, avoiding the need for further preparation for and attendance at this Hearing.[15]The Claimant had failed to comply with several Tribunal orders, as follows:a. He failed to attend the first telephone case management hearing in this matter, on 31 October 2018, stating that he had misread the clear instructions on the notice of hearing, as to telephoning in at the appropriate time, thus resulting in the necessity for another case management hearing, heard on 28 May 2019, incurring additional work by both the Tribunal and the Respondent and delaying the final hearing of this matter.b. At that second hearing, despite agreeing today’s hearing date, he created uncertainty for both the Tribunal and the Respondent, by stating that he was unsure if he would in fact attend.c. As stated by Mr Roberts, he failed to comply with the order for disclosure, without good reason (and indeed, despite that brought along a sheaf of documents to today’s hearing, which he asserted, without knowing whether it was in fact the case or not that they were not included in the bundle, thus wasting time at this Hearing.) He disobeyed the order as to exchange of witness statements, again, without reasonable explanation, only providing his statement today, again wasting time at this Hearing.[16]Noting our views as to his credibility, generally, the Claimant provided no corroborative evidence as to his medical condition, or why it would have prevented him from progressing this case, or more reasonably responding to offers and costs warning letters. Nor did he provide corroborative evidence of any time spent outside the UK, but, in any event, with modern digital communications that factor should have not have prevented him from attending telephone hearings, or complying with Tribunal orders. Amount of Costs Order[17]We had no reason to doubt Mr Roberts’ statement that his client’s costs, from the date of the costs warning letter, amounted to £7885. His own brief fee would easily run to a third of that amount and from our own experience (in particular that of the Employment Judge), solicitor’s costs for preparation for the hearing, to include preparing of a bundle (to include a separate costs bundle), drafting and redrafting of witness statements, briefing counsel and dealing with queries from counsel and client would routinely amount to the balance.[18]In respect of that sum, we went on to consider the Claimant’s ability to pay it. The Claimant said that he was currently unemployed and applying for positions and owned no property. He said that he was ‘homeless’ and while he was vague on this point and would not give any information about his current address, we gained the impression that he may be staying with friends. Applying Arrowsmith, we came to the conclusion that the Claimant will, if not now, in the future, have the ability to pay costs in the sum of £7,855, for the following reasons:a. He is a well-educated and skilled individual, is still very much of working age and can, therefore, if not now, in due course, expect to return to a similar income as before (in the region of plus of £30,000 p.a.).b. It is the case that no matter what order is made by this Tribunal, the Respondent will be unable to ‘get blood from a stone’: if the Claimant genuinely does not have the funds, then he cannot be forced to pay. In that event, it will then be open to the Respondent to consider enforcement through the County Court, in which process the Court can order him to attend, with documents, to satisfy itself as to his means and to then make a repayment order, taking into account his genuine ability to pay.[19]Conclusion. We conclude, therefore, for the reasons set out above that the Claimant is ordered to pay the Respondent’s costs, in the sum of £7855.00.
REASONS
(having been requested subject to Rule 62(3) of the Tribunal’s Rules of Procedure 2013) Background and Issues[1]The Claimant was employed as a design and manufacturing engineer by the Respondent, for approximately twenty months, until his dismissal, for alleged gross misconduct, with effect 23 May 2018.[2]There have been two case management hearings in this matter, on 31 October 2018 and 28 May 2019, at which it was agreed that the issues, as to automatic unfair dismissal on health and safety grounds, were, applying s.100(1)(e) of the Employment Rights Act 1996:a. Was the reason, or if more than one, the principal reason for the Claimant’s dismissal that, in circumstances of danger which the Claimant reasonably believed to be serious and imminent, he took appropriate steps to protect himself (namely, by refusing to work at a particular machine, unless trained to do so).b. In this respect, the burden of proof is on the Claimant.[3]We discussed the following preliminary matters:a. The Claimant brought along additional documents which he said were mainly emails, some of which he said had not been included in the joint bundle. He was unable to say which those documents were, but agreed that they related to correspondence between him and the Respondent solicitors, post the bringing of this claim. Therefore, on the basis that the Claimant had had ample opportunity to consider the contents of the bundle prior to this Hearing, but had failed to do so and in any event that the emails seemed unlikely to be relevant to the events leading up to his dismissal, we refused their inclusion, with which the Claimant did not dissent.b. The Claimant had only provided his witness statement today, despite having had the Respondent’s statement for some time now. He said that he had been out of the Country for a period and was now, in UK, homeless and had being trying to obtain legal advice and could not, therefore, provide it sooner. While the Respondent objected to its late disclosure and its inclusion of privileged material, they agreed, nonetheless, to proceed with this Hearing.
The Law
[4]Section 100(1)(e) ERA, as referred to above.[5]Mr Roberts referred us to the case of Oudahar v Esporta Group Ltd [2011] UKEAT IRLR 730, as to the correct sequencing of applying the criteria set out in s.100(1)(e).
The Facts
[6]We heard evidence from the Claimant and on behalf of the Respondent from Mr Bill Jeffrey, the Claimant’s line manager, who dismissed him.[7]A non-contentious sequence of relevant events is as follows:a. In or about March 2018, a project arose called the ‘door line programming and automation’ project (shorthand ‘the door project’). Either at the Respondent’s or the Claimant’s suggestion, the Claimant became involved in this project.b. Essentially, he was asked to produce a programme that would in turn, produce a sample door on a machine called Biesse.c. On 4 May 2018, Mr Jeffrey emailed the Claimant [71], saying that the sample would be reviewed on 8 May and ‘after which I will give you five more patterns to do’ and that ‘if everyone is pleased with the improvements in time and quality, I will then review your salary.’ The Claimant replied the same day, stating ‘I can do three. It is a very demanding job’.. ‘I’ve earned these skills through learning of engineering for a long time, where I had to pay money for my studies and time, so I would prefer to make it clear that the pay review, so it’s obvious, as (£35,000), as fair treatment, reward and pay for the wide range of skills I’m offering the company.’d. On 17 May 2018, the Claimant attended a meeting with Mr Jeffrey and several other managers. There is a dispute as to what was said at that meeting, with Mr Jeffrey stating that the Claimant several times demanded a pay rise, before completing any more samples. The Claimant agreed that he did ask for a pay rise, but also coupled that with a request for training. The meeting ended inconclusively.e. The Claimant did not complete certainly the five requested samples and Mr Jeffrey said that he viewed that failure as ‘a refusal to carry out duties or reasonable instructions’.f. Although the date is disputed, it is agreed that at some point thereafter (Mr Jeffrey says 23 May), the Claimant was summarily dismissed, at a short, unminuted meeting. The letter of dismissal, dated 24 May [76] confirmed the dismissal for refusal to carry out duties for which he was employed. On the same date, Mr Jeffrey typed a summary note, in relation to the dismissal [75].g. The Claimant appealed against that decision, by letter of 24 May [77], simply requesting an appeal hearing, ‘as the dismissal was unfair’.h. An appeal hearing was held on 5 June [notes 79-80], by a Mr Morris, who upheld the decision to dismiss [letter 81].[8]Applying Oudahar, the questions we must consider, are as follows:a. Were there circumstances of danger which the Claimant reasonably believed to be serious and imminent? In that respect, the question is as to whether or not, as asserted by the Claimant, he had been instructed by Mr Jeffrey, to personally operate the mechanism of the Biesse machine (as distinct from its programming computer), for which he said he had not been trained and feared injury as a consequence.b. Did the Claimant take appropriate action to protect himself from danger?c. If that was the case, was it the reason or principal reason for his dismissal?[9]Credibility. In a case such as this, particularly one without much supporting documentation, our findings at to which oral evidence we prefer are crucial. In this respect, we prefer the evidence of Mr Jeffrey, for the following reasons:a. We considered the Claimant’s repeated assertions that he had not, at the appeal hearing, frequently referred to pay rises, despite such references being recorded in the notes, as not being credible. He had, on several previous occasions, in writing, disputed his pay level and it seems unlikely that he would not have raised it in the appeal. It seemed to us that he incorrectly perceived the reference to such requests as a criticism – as he said, ‘it’s no crime’. However, because of that perception on his part, he therefore, it appeared to us, considered that he had no choice but to deny all such references, despite all the evidence to the contrary. We also consider that and his refusal to accept that his use of the phrase ‘reward’ referred to pay, when all the evidence indicated that was his main concern, untruthful on his part.b. Similarly, despite him stating, for the first time that the notes were fabricated, we find it very unlikely (as quite an unusual reference) for the Respondent to record that he had referred to a friend of the Claimant needing to be paid to assist him with the work. We consider his reference to the notes being fabricated as an attempt to escape the consequences of their contents and reflects poorly on his credibility.c. In contrast, Mr Jeffrey gave straightforward evidence and was not afraid to admit error, or correct his evidence. He readily admitted little knowledge of employment law, stating, contrary to the Claimant’s assertions that he had referred in the disciplinary hearing to the fact that the Claimant had less than two years’ service, and therefore ‘no rights’ that in fact, he thought such qualifying period was six months, which evidence we accept. His evidence was not shaken in cross-examination.[10]Instructions to Use the Biesse Machine. We heard entirely contradictory evidence on this point: the Claimant said that he had been directly, verbally instructed by Mr Jeffrey to operate the machine (as opposed to the computer), by feeding in metal sheets into it, to create the samples and that he refused because he was not trained to do so and feared injury. Mr Jeffrey denied any such instruction, stating that the Claimant had only been told to programme the machine, but that there a full-time machine operator available to operate it. Mr Jeffrey agreed that the Claimant had, on several occasions, asked for further training, but said that that was in relation to programming, with the purpose of furthering the Claimant’s career. He said it made no sense for the Company to train the Claimant to do a lower-level job and in respect of the programming training that the Claimant did not need any such further training to do his job, based on the extensive experience and education shown in his CV. We find as a fact that the Claimant was not instructed to operate the machine and therefore did not need training in respect of such operation, for the following reasons:a. Our views as to his credibility.b. Because he seemed completely unaware of what safety equipment might be necessary to operate it.c. Because at no point in the disciplinary or appeal process did he refer to either being instructed to operate the machine, or to any danger or risk he may suffer as a consequence.d. He was aware of the Respondent’s grievance procedure [59], contained in his contract and while he was perfectly capable of putting his concerns in writing (as evidenced by emails around the time), he failed to take that opportunity.[11]Conclusion. On that basis, therefore, considering that the burden of proof is on the Claimant, we find that the Claim fails at the first point of consideration, namely that ‘circumstances of danger which the Claimant reasonably believed to be serious and imminent’ did not exist, as he had not been instructed to use the machine. Accordingly, therefore the Claimant’s claim of automatic unfair dismissal fails and is dismissed.