Mr B Truman v Mid and West Wales Fire and Rescue Service: 1600911/2024
JUDGMENT
The claim was not presented within the applicable time limit. It was reasonably practicable to do so. The claim is therefore dismissed.REASONS
[1]The ET1 was presented on 25 March 2024. At a hearing on 17 September 2024 I decided the claim had been presented out of time and it was reasonably practicable to have presented it in time.[2]On 1 October 2024 the respondent made an application for costs. The claimant objected in a response dated 14 October 2024. This application was referred to Judge Moore on 28 October 2024 who directed that the parties should comment as to whether a hearing was required. This was not actioned until 8 November 2024. On 14 November 2024 the respondent confirmed they did not require a hearing. The claimant’s urgent comments were sought on 3 November 2024 as well as a direction to provide evidence about means to pay. The claimant responded on 10 December 2024 with evidence as to means but did not comment on whether a hearing was required.[3]On 17 January 2024 Judge Moore confirmed the matter would be determined on the papers without a hearing. Further directions were sent for the submission of a costs schedule on 4 February 2025 as well as any final submissions. The costs schedule and other documents were sent by the respondent on 11 February 2025 and Judge Moore has determined the application in chambers on 20 February 2025. Case No: 1600911/2024 10.7 Judgment with reasons Rule 62 February 2018 Grounds for the application[4]The respondent sought costs on the following basis:a. The claimant acted unreasonably in both bringing and conducting the proceedings and or in the alternative the claim had no reasonable prospect of success. The reason asserted was that the claimant’s claim was submitted almost 9 months after the effective date of termination significantly outside of the three month limitation period and the claimant had not provided an explanation as to why it was not reasonably practicable for him to present his claim on time in his claim form;b. the claimant did not attend the preliminary hearing on 17 September 2024 to give evidence to be cross-examined on points arising from his witness statement. I commented this was problematic. Attempts were made to secure the claimant’s attendance at the hearing but it transpired he was on holiday. The Claimant’s representative then applied for a postponement which I refused as the communications from the tribunal regarding the claimant’s attendance at the hearing could not have been clearer;c. the general approach by the claimant had put the respondent to unnecessary costs in defending the claim in the respondent’s public body and these costs will have been met by the taxpayer;d. On 5 September 2024 the respondents solicitors wrote to the claimant solicitors to put them on costs warning.[5]The claimant submitted as follows:a. the claimant had genuinely believed that a claim had been presented on 14 November 2023 following his communication with his FBU representative and it was reasonable and necessary for the time limit issue to be determined by the tribunal after considering the evidence;b. this was not a case where the claimant brought a claim vexatiously and the tribunal did not determine substantive merits of the case;c. the claimant is of limited means and is now in a position where he was entirely reconsidering his career options;d. in terms of the claimant’s non-attendance it was explained by counsel and the tribunal order did not specifically require the claimant’s attendance and noted he should be represented should he not be attending himself. The claimant had pre-booked leaved and apologised for his non-attendance.[6]In terms of the claimant’s means, following his dismissal by the respondent he has struggled to obtain alternative employment. He currently works at a crossfit Gym for 12 hours per week receiving £11 per hour. His monthly income is approximately £530. The claimant has had to sell his car and is Case No: 1600911/2024 10.7 Judgment with reasons Rule 62 February 2018 currently borrowing his father’s car. He pays £60 a month petrol to get to the and separate gym membership £30 a month. He contributes to food and lodging resides with his parents and does not have any other assets. Judgment dated 18th of September 2024[7]In my judgment I observed the burden of proof was on the claimant to show it was not reasonably practicable to present the claimant in time. In my conclusions I observed that there was a lack of evidence before me as to what communications occurred between the claimant and his union representative on the night of 13 November 2023. I concluded that taking the claim at its highest the claimant says he was told the claim had to be submitted that night and sent ahis ET1 to his union representative understanding he would then submit the claim. I was unable to determine what then happened, what was sent to the FBU, was there was any reply or acknowledgement. I concluded that as the claimant had completed the form it was ready for submission on 13 November 2023 and this showed that it was reasonably practicable for the claim to have been presented in time. I could not assess whether it was reasonable for the claimant to have been ignorant of the requirements to send ET1 to the tribunal. I was also unable to assess whether that reliance on his adviser was reasonable as there was no evidence before me about what enquiries either the claimant or the FBU adviser had made.The Law
[8]The power to award costs is set out in Part 13 of the Employment Tribunal Rules of Procedure 2024 (“the Rules”). This provides for a two stage test: 74 When a costs order or a preparation time order may or must be made 74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success[9]Rule 77 provides as follows in respect of preparation time orders: The amount of a preparation time order 77.—(1) The Tribunal must decide the number of hours in respect of which a preparation time order should be made, on the basis of—(a) information provided by the receiving party on the preparation time spent, and(b) the Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required. (2) The hourly rate is £44 and increases on 6 April each year by £1. (3) The amount of a preparation time order must be calculated by multiplying the number Case No: 1600911/2024 10.7 Judgment with reasons Rule 62 February 2018 of hours assessed under paragraph (1) by the rate under paragraph (2) which is applicable to the year beginning 6 April in which the preparation time was spent.[10]Rule 82 provides that in deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.[11]Radia v Jefferies International Ltd [2020] IRLR 431, EAT sets out the approach go be taken when considering a costs order. The first question for a tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of (referring to the old rule numbers) r76(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that the tribunal may make a costs order, and shall consider whether to do so. That is the second stage, and it involves the exercise by the tribunal of a judicial discretion.Conclusions
[12]I have firstly considered whether the grounds under r74 (2) (a) or (b) apply. I agree with the claimant’s representative that the claimant was not unreasonable to have brought the claim. Whilst it was significantly out of time, it was not unreasonable for the claimant to argue that in the circumstances of his particular claim, the Tribunal should determine whether it had been reasonably practicable to have presented the claim in time. This required hearing the facts at a preliminary hearing. There was an arguable case considering what had taken place with the union representative. It was not settled that the claimant’s recourse should lay with a claim against his union. The claimant is a young man who was relying upon advice from his union and showed intent to bring a claim in time on 13 November 2023.[13]However in respect of the conduct of the proceedings I do consider there has been unreasonable conduct. Firstly because despite being legally represented and in full knowledge the claim was significantly out of time the claim form did not acknowledge this specifically or provide particulars as to the issue of reasonable practicability. This led to a full hearing being listed. It was not until the response was filed that it was clear as to the extent of the time point. However this was ameliorated by the provision of a witness statement. At that stage therefore the respondent had an idea of the claimant’s position on the time point.[14]Secondly, I consider the claimant was unreasonable in failing to attend the hearing to give evidence. In a letter dated 12 August 2024 the parties were informed the issue of time would be determined at a preliminary hearing and they were to exchange evidence about time limits including a witness statement. It should have been obvious to any legal representative that in these circumstances the claimant would be expected to give evidence at the hearing. Whilst he was not compelled to appear at the hearing by any formal order, in his absence, his written statement could not be challenged Case No: 1600911/2024 10.7 Judgment with reasons Rule 62 February 2018 or further questions asked. The burden of proof was on the claimant and the respondent was put to the expense of a hearing which the claimant then failed to attend.[15]I therefore go on to consider whether to exercise my discretion and order for costs.[16]In exercising my discretion, I have taken into account the claimant was legally represented. It appears to me that the claimant was not aware that he would be required to attend nor of the importance of attending rather than any cavalier attitude towards the proceedings or a deliberate decision to prioritize a holiday over the hearing. Nonetheless it remains unexplained as to why the claimant was not advised that he should attend the hearing especially given the burden of proof was on him. Had the respondent been aware of this, it is likely the issue could have been determined on the papers without the need for a hearing. This put the respondent to the expense of preparing for the hearing.[17]However I consider that I should take into account the claimant’s means when exercising my discretion and it is plain that the claimant does not have the ability to meet any costs order I may decide to make. Further in light of the impact of the summary dismissal on the claimant’s future career I do not envisage that he would be able to meet a costs order in the foreseeable future.[18]Having balanced all of the above factors I have decided not to exercise my discretion and refuse the application for costs.