Ms LeeMr LannamanIn person for claimantDate 6 April 2023
JUDGMENT
[1]The claim brought by the claimant of refusal of employment on grounds related to union membership contrary to section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992 is not well-founded and is dismissed.[2]Any claim of detriment on the ground that the claimant had made a protected disclosure is not well-founded and is dismissed.
REASONS
[1]The claimant appeared in person but said that he wanted the hearing recorded. It had been explained to him that Employment Tribunal hearings are not recorded. He then left the hearing before the oral evidence commenced. The Tribunal decided to proceed with the hearing in the claimant’s absence. Ms Senior represented the respondent.[2]The Tribunal heard evidence from: Richard Staves, Sales Director. The Tribunal had sight of a written statement provided by the claimant. As he refused to participate in the hearing, this was considered without the opportunity for the Tribunal or the respondent to ask questions and for the Tribunal to assess the claimant’s demeanour and credibility.[3]The Tribunal had sight of a file of documents numbered up to page 167 together with a document which had been provided to the Tribunal and the claimant on the morning of the hearing, which was then numbered as page 168. .[4]This hearing had been listed for a two-day hearing by CVP in a Case Management order dated 9 December 2022 and sent to the parties on 14 December 2022.[5]On 4 April 2023 the Tribunal wrote to the claimant stating: “Employment Judge Shepherd has considered the claimant's email of 14:12 today. This case has been listed to be heard over two days – 5 April 2023 and 6 April 2023. The parties have been aware of this since 14 December 2022 when they were informed it was listed as a video hearing. Employment Judge Davies informed the claimant on 3 April 2023 that the hearing could be listed to take place by CVP or in person. If it was to be held by CVP, the claimant would need to use a suitable device to connect to the CVP hearing. That means either a computer, laptop or tablet but not a mobile phone. The claimant was also told that he would need either a hard copy of the file or a suitable device to view the documents. It was provided that, if the claimant does not have a suitable device for viewing documents he would need to arrange to collect a hard copy from the respondent, or go to a library or printshop to print it out. The claimant was ordered to email the Tribunal and the respondent by 10 am today (4 April 2023) to confirm:a. Does he want it to be by CVP or in person?b. If he wants it to be by CVP, he must confirm that he has a laptop, computer or tablet to connect to the hearing.c. He must also confirm that he will either collect or print a hard copy of the documents for his own use at the hearing or that he has a separate, suitable device for viewing them.d. If he wants the hearing to be in person, he must confirm that he will either collect or print a hard copy of the documents for his own use at the hearing. A decision will then be made about whether the hearing should be by CVP or in person. It was also made clear that if the claimant did not take proper steps to participate in the process, the hearing may go ahead in his absence or a Judge may consider striking out his claim because he has conducted it in an unreasonable way and/or a fair hearing is no longer possible. The claimant has not complied those orders, but at 9.59 today he sent an email dated and stated "I'll come to Sheffield court tomorrow. If you want" At 10.01 he sent another email stating "Do as you please. This is bullying and harassment. I'm going to appeal anyway we know your decision." On this basis, the case was listed for an attended hearing in the Sheffield Employment Tribunal on Wednesday 5 and Thursday 6 April 2023. The claimant has now, contrary to his email at 9.59, sent an email indicating that he can't make Sheffield at that short notice. He also states "You won't record it so see you Friday for the second day. This is unfair behaviour." The Tribunal has tried very hard to accommodate the claimant. This is his claim. He should attend the hearing as he indicated this morning that he could. The case remains listed for an attended hearing in Sheffield on 5 April 2023 and 6 April 2023.”[6]On 4 April 2023 at 14:37 the claimant sent an email to the Tribunal stating “You won’t record the hearing, like the other hearing I won’t take part, I’ve sent my witness statement in. You do the hearings anyway and ignore law legislation and fact I can prove every lie the respondent has said in there ET3 responses but that’s not enough. I know your answers you know your decision. Unless recordered as I don’t trust yourselves you do what you want in these hearings so if not recorded you can go ahead with my permission without me, I look forward to the judgment. Giving the 2 days to appear in a court in person. Minimal deadlines on these last 2 days email. Working with the respondent solicitors everyone, anything they ask they get. You have my witness statement I don’t need a bundle. I ask for another date if I. In person. Not 2 says notice.”[7]The claimant attended the Hearing of 5 April 2023. He asked if the hearing was going to be recorded. The Employment Judge attempted to discuss this issue with the claimant. However, the claimant stated that: “I don’t need to be here, you can do this without me I will just appeal”[8]The claimant left the hearing stating that the Tribunal could go on and get started without him. The Employment Judge attempted to explain to the claimant that Employment Tribunal hearings are not recorded. However, the claimant referred to pages 92 – 110 and said this “blows their case out of the water” and asked the Tribunal to read those pages. The Employment Judge indicated that the Tribunal would do that. The claimant then said that he was being threatened and he would just appeal. The claimant then left the hearing and did not return.[9]The Tribunal discussed the matter and, having read the hearing file and witness statements of the claimant and Richard Staves, the respondent’s Operations Director, it was decided to proceed with the hearing in the claimant’s absence.[10]Mr Staves gave evidence on oath. The Tribunal asked questions in order to clarify issues. Ms Senior made submissions on behalf of the respondent.
The issues
[11]On 9 December 2022 in an annex to a Case Management Order, Employment Judge Cox provided that: “The claimant worked as a thermal insulation engineer. He alleges that the respondent refused him employment because of his union membership, contrary to section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992. He alleges that this occurred on various occasions from February 2021 to the date of the claim (9 March 2022) in relation to work at Keadby Power Station, Scunthorpe. The principal issues to be decided in the claim are: 1. Did the respondent refuse to employ the claimant at Keadby on any occasion in that period? 2. If so, was the claim presented within 3 months of the date of that refusal? 3. If not, was it reasonably practicable for it to have been presented by then? 4. If not, has it been presented within a further reasonable period? 5. If so, was the refusal because of the claimant’s Union membership?
Findings of fact
[12]Having considered all the evidence, both oral and documentary, the Tribunal makes the following findings of fact on the balance of probabilities.[13]The respondent uses a mixture of employees and workers provided through employment agencies. The majority of staff are directly employed and some agency workers are also appointed.[14]Richard Staves, the respondent’s Operations Director contacted Zac Collins of Alpha Recruitment Labour and Recruitment Ltd in June 2021 indicating that the respondent may need some agency workers at the Keadby site. On 15 June 2021 Zac Collins provided Mr Staves with a list of 19 names.[15]Eight of those names were for labourers and, therefore, not relevant. There were 11 Thermal Insulation Engineers “laggers” which included the claimant. The respondent requires Thermal Insulation Engineers who work for it to hold the Client Contractor National Safety Group Safety Card (CCNSG).[16]Of the 11 Laggers on the list, only 4 were marked as having the Client Contractor National Safety Group Safety Card. The information provided by Alpha Recruitment showed that the claimant did not have the required CCNSG card. Richard Staves selected two of the workers as they had the CCNSG card and the information provided indicated that the claimant did not have this.[17]Richard Staves did not select the claimant because the information provided by the recruitment agency was that he did not have the requisite card. He also stated that, even if the claimant did have the CCNSG card, he would have picked the other two workers as they had worked for the respondent before and were a known quantity.[18]The claimant presented a claim to the Employment Tribunal on 9 March 2022. The claimant referred to “whistleblowing”. It includes allegations against five respondents. The only respondent remaining in the case is CGB Humbertherm Ltd and the issues identified by Employment Judge Cox are in respect of the allegations of refusal of employment because of his Union membership contrary to section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The Law
[19]Section 137(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that it is unlawful to refuse a person employment because he is, or is not, a member of a Trade Union.[20]To succeed with a claim under section 137 the claimant must show that the reason for the refusal to employ him was because of his Trade Union membership.[21]As direct evidence of the reason why employment was refused can often be sparse, a Tribunal may need to draw inferences from the surrounding facts and the employer’s explanation. It has been held that the refusal under section 137 is, in effect, a form of discrimination on the ground of Union membership and it is appropriate to adopt the same approach to causation and the burden of proof as in section 136 of the Equality Act which provides: “(1) This Section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But sub-Section (2) does not apply if (A) shows that (A) did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or Rule. (5) This Section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to – (a) An Employment Tribunal.”[22]Section 139 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides: “(1) An employment tribunal shall not consider a complaint under section 137 unless it is presented to the tribunal –(a) before the end of the period of three months beginning with the date of the conduct to which the complaint relates, or(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such period as the tribunal considers reasonable.”
Conclusions
[23]The Tribunal had sight of a message sent from the claimant to Zac Collins on 2 July 2021 in which he referred to being “blacked for humbertherm” as he had never worked for them. This message was not sent to the respondent and had not been seen by Richard Staves prior to the claim to the Tribunal.[24]Richard Staves gave clear and credible evidence that he had no knowledge of the claimant’s Trade Union membership or activities before the claim was presented to the Tribunal. He only became aware that the claimant was a Trade Union member when the respondent received notice of this claim. In those circumstances the Tribunal accepts Richard Staves’ evidence that it cannot possibly have played any part whatsoever in the decision as to who was offered employment.[25]The Tribunal considered the documents which the claimant said would blow the respondent’s case out of the water. These were largely messages with the employment agency. The claimant had informed Zac Collins that he had the CCNSG card in November 2020. This is not information that was given to or within the knowledge of the respondent. There was mention of the claimant and other interested laggers provided to Richard Staves by Zac Collins in June 2021 but no reference to their Trade Union membership or the CCNSG card.[26]The claim was in respect of the employment of agency workers at the Keadby site and relates to the events of June and July 2021. The claimant raised the issue that he had been blacklisted by the respondent with the employment agency on 2 July 2021. There was no mention of the claimant’s Trade Union membership or activities in his witness statement or the documents to which he referred when he left before the oral hearing commenced. The claim was presented to the Tribunal on 2 March 2022 following the ACAS early conciliation procedure.[27]The claim was substantially out of time, approximately five or six months, and there was no evidence that it was not reasonably practicable for the claim to have been presented within the three months period. The Tribunal had no jurisdiction to hear the claim.[28]If the Tribunal did have jurisdiction to hear the claim then it is not satisfied that the claimant had established facts from which the Tribunal could conclude that there was a refusal to employ the claimant because of his Trade Union membership. The burden of proof did not shift to the respondent but, if it had, there was clear and credible evidence that the respondent had no knowledge of the claimant’s Trade Union membership and the Tribunal is satisfied that the respondent has established that the failure to employ the claimant was in no way whatsoever because of his Trade Union membership.[29]There was no evidence of any claim of detriment on the ground of making a protected disclosure.[30]In those circumstances, the unanimous decision of the Tribunal is that the claim is not well-founded and is dismissed.
Conclusions
[1]The judgment of the Tribunal in respect of the claims brought by the claimant was claimant of refusal of employment on grounds related to union membership was not well-founded and was dismissed and any claim of detriment on the ground that the claimant had made a protected disclosure was not well founded and was dismissed.[2]On 21 April 2023 the respondent made an application for costs. It was stated that the respondent made the application against the claimant on three grounds: i) That the Claimant has acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing the proceedings (or part); and, or in the alternative ii) That the Claimant has acted vexatiously, abusively, disruptively or otherwise unreasonably in the way the proceedings (or part) have been conducted; and iii) That the claim had no reasonable prospect of success.[3]The respondent requested that the costs application should be dealt with “on the papers” without the need for an oral hearing.[4]On 3 May 2023 the Tribunal wrote to the parties indicating that if the claimant wished to make any written representations in response to the respondent’s application for costs he must send them to the Tribunal and the respondent within 14 days. It was indicated that the Tribunal intended to deal with the respondent’s costs application on paper. If the claimant wished the Tribunal to hold a hearing to decide the costs application rather than dealing with it on the papers alone, he should confirm that as well.[5]The respondent’s application referred to the claimant having been being ordered to cease sending reams of irrelevant and abusive email to the Tribunal and the parties but he continued to do so and his behaviour throughout these proceedings was vexatious, abusive, disruptive and/or unreasonable.[6]The respondent referred to the claimant’s failure to comply with Case Management Orders.[7]At the hearing, despite being warned repeatedly and exhaustively that the matter would not be recorded, the claimant behaved exactly as he had done on other cases, walked out having had his demands for the matter to be recorded refused. Such conduct was vexatious, abusive, disruptive and/or unreasonable.[8]It was submitted that, in terms of the merits of the case itself, as is clear from the Judgment, the entire claim was based on pure speculation. The Claimant never applied for a job with the Respondent, either directly or indirectly. He had absolutely no evidence to support that contention when he brought the claim which was confirmed absolutely via disclosure and witness evidence. Indeed, the Claimant never actually pointed to any date or time when he did apply. Further, he had no evidence at all to support a contention that the Respondent had any knowledge of who he was or his alleged Trade Union activities, which to this day remain unspecified.[9]It was also submitted that granting this application would deal with the case fairly and justly and it simply cannot be right for a claimant to behave in the manner set out without consequence.[10]The costs hearing was listed for 1 August 2023 and it was indicated that the respondent’s application would be dealt with on paper by the Tribunal panel.[11]On 24 July 2023 the claimant sent an email to the Tribunal stating: “I am writing regarding my financial circumstances. I Can prove I have not worked since 2012. Had 2 daily break ups 2016, 2023 regarding the stresses of no work, money I had to get a debt relief order 2019 as my debts snowballs through no work All can be proven I'm now homeless and universal credit csn prove this I've asked in court many times to go through my finances I'm completely broken ,homeless, farther less I have nothing to give even if I get a costs order, not a higher to live in I'm a broken ,skint, man”
The law
[12]The Employment Tribunal is a completely different jurisdiction to the County Court or High Court, where the normal principle is that “costs follow the event”, or in other words the loser pays the winner’s costs. The Employment Tribunal is a creature of statute, whose procedure is governed by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Any application for costs must be made pursuant to those rules. The relevant rules in respect of the respondent’s application are rules 74(1), 76(1) and (2), 77, 78(1)(a), 82 and 84. They state:- 74(1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purposes of or in connection with attendance at a tribunal hearing). 76(1) A tribunal may make a costs order or a preparation time order and shall consider whether to do so 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) or the way that the proceedings (or part) had been conducted; or(b) any claim or response had no reasonable prospect of success. (2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. 77 A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party, was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the tribunal may order) in response to the application. 78(1) A costs order may – (a) order the paying party to pay the receiving party a specified amount not exceeding £20,000 in respect of the costs of the receiving party. 84 In deciding whether to make a costs, preparation time or wasted costs order and, if so, in what amount, the Tribunal may have regard to the paying party’s ability to pay.[13]The discretion afforded to an Employment Tribunal to make an award of costs must be exercised judicially. (Doyle v North West London Hospitals NHS Trust UKEAT/0271/11/RN. The Employment Tribunal must take into account all of the relevant matters and circumstances. The Employment Tribunal must not treat costs orders as merely ancillary and not requiring the same detailed reasons as more substantive issues. Costs orders may be substantial and can thus create a significant liability for the paying party. Accordingly, they warrant appropriately detailed and reasoned consideration and conclusions. Costs are intended to be compensatory and not punitive. The fact that a party is unrepresented is a relevant consideration. The threshold tests may be the same whether a party is represented or not, but the application of those tests should take account of whether a litigant has been professionally represented or not. (Omi v Unison UKEAT/0370/14/LA). A litigant in person should not be judged by the same standards as a professional representative as lay people may lack the objectivity of law and practice brought to bear by a professional adviser and this is a relevant factor that should be considered by the Tribunal. (AQ Limited v Holden [2012] IRLR 648). The means of a paying party in any costs award may be considered twice – first in considering whether to make an award of costs and secondly if an award is to be made, in deciding how much should be awarded. If means are to be taken into account, the Tribunal should set out its findings about ability to pay and say what impact this has had on the decision whether to award costs or an amount of costs. (Jilley v Birmingham & Solihull Mental Health NHS Trust UKEAT/0584/06).[14]There is no requirement that the costs awarded must be found to have been caused by or attributable to any unreasonable conduct found, although causation is not irrelevant. What is required is for the Tribunal to look at the whole picture of what happened in the case and to identify the conduct; what was unreasonable about the conduct and its gravity and what effects that unreasonable conduct had on the proceedings (Yerraklava v Barnsley MBC [2012] IRLR 78). As was said by Mummery LJ in McPherson v BNB Paribas (London Branch) [2004] ICR 1398, that there is a balance to be struck between people taking a cold, hard look at a case very close to the time when it is to be litigated and withdrawing, on the one side of the scale, and others, on the other side of the scale, who do what may be described as raising a “speculative action”, keeping it going and hoping that they will get an offer. The same principle will apply in respect of respondent’s conduct in respect of unmeritorious responses.11. The claimant did not have legal representation. Lord Justice Sedley in the case of Gee v Shell UK Limited (2002) IRLR 82 stated that it is: “A very important feature of the employment jurisdiction that it is designed to be accessible to people without the need of lawyers, and that – in sharp distinction from ordinary litigation in the United Kingdom – losing does not ordinarily mean paying the other side’s costs”.12. That remains the case today. Costs are still the exception rather than the rule.13. The Tribunal has taken into account the fact that the claimant is not legally represented. He has provided an indication that he is of very limited means. However, he has not provided a statement setting out his monthly income, expenditure and assets and liabilities as he was instructed to do. 14. The claimant has indicated that he has nothing to give even if a costs order is made. The Tribunal has considered the position carefully, including the prospects of the respondent recovering any costs and considers that an order for costs should be made which has a realistic prospect of being paid.[15]In these circumstances the Tribunal does not make an order for the claimant to pay all of the respondent’s fees. However, it is appropriate that the claimant should pay some of the fees incurred by the respondent. The bringing of a case that had no reasonable prospect of success and the unreasonable way in which the proceedings were conducted should be reflected in an order for costs.[16]In all the circumstances, the Tribunal finds it just and equitable to order the claimant to make a contribution towards the respondent’s costs.[17]The unanimous judgment of the Tribunal is that the claimant is ordered to pay to the respondent the sum of £400.00 inclusive of VAT.