Ms N Cross-Padden v Kitrinos Healthcare (Charity No 1172586) and Others: 2301889/2022
EMPLOYMENT TRIBUNALS
Case No 2301889/2022
Between
Ms N Cross-PaddenClaimantKitrinos Healthcare (Charity No 1172586) and OthersRespondent
Before
Employment Judge P KlimovDate 4 August 2023
REASONS
[1]On 31 May 2022, the claimant presented complaints against R1 and R2 for unfair dismissal, unauthorised deduction from wages, failure to pay the national minimum wage, for accrued but not taken holidays, and a claim for breach of contact with respect to notice pay and unilateral reduction in contracted hours.[2]On 18 January 2023, by an order of Employment Judge Chapman KC R3 was joined as a party to the proceedings. The respondents later sought to disjoin R3 from the proceedings. However, at the start of the hearing they abandoned that application. Case Number 2301889/2022[3]The respondents entered a response denying all the claims, chiefly on the basis that the claimant was not an employee but a self-employed.[4]At the start of the hearing, the respondents sought to introduce a supplemental witness statement by Dr Siyana Mahroof-Shaffi, which they had served on the claimant on the eve of the hearing. I refused the respondents’ application for the reasons I gave to the parties orally.[5]I then proceeded to discuss with the parties the list of issue and timetabling for the hearing. In the course of that discussion Ms Wood said that the respondents were conceding that the claimant was an employee and her claims for unauthorised deduction from wages with respect to the failure to pay the national minimum wage and for the accrued holidays. The respondents also conceded that the claimant was unfairly dismissed. However, Ms Wood said, that the respondent would argue the Polkey reduction point on the issue of compensation for unfair dismissal.[6]Ms Wood then asked for a short adjournment to take instructions on the remaining parts of the claimant’s claim, which I granted. The parties then asked for a further adjournment to allow them to discuss the remaining issues, which I granted.[7]The hearing resumed at 12:30pm. The parties confirmed to me that they had reached a settlement, and the respondents had agreed to pay to the claimant the sum of £11,210.89 (gross) in full and final satisfaction of all the claimant’s claims in these proceedings. They asked me to enter a judgment by consent on these terms, which I did.
The Law
[8]While a precise causal link between unreasonable conduct and specific costs is not required, it is not the case that causation is irrelevant. In Yerrakalva v Barnley MBC [2012] ICR 420 Mummery LJ said: “41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson's case was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the employment Tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances”.[9]Whether a claim or response had reasonable prospects of success is an objective test (Radia v Jefferies International Ltd EAT 0007/18). It is irrelevant whether the party genuinely thought that the claim/response did have reasonable prospects of success – (Scott v. Inland Revenue Commissioners [2004] ICR 1410 CA, at para.46).[10]In considering whether a claim or response had no reasonable prospects of success, the tribunal is not to look at the entire claim/response, but each individual cause of action – (Opalkova v Acquire Care Ltd EAT/0056/21, unreported, at para.17).[11]Under Rule 79 of the Rules a tribunal must decide the number of hours in respect of which a preparation time order should be made. This assessment must be based upon:(a) information provided by the receiving party in respect of his or her preparation time, and(b) the tribunal’s own assessment of what is a reasonable and proportionate amount of time for the party to have spent on preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and the documentation required.[12]The current hourly rate is £43 (Rule 79(2)).[13]The amount of preparation time order shall be the product of the number of hours assessed under Rule 79(1) and the current hourly rate (Rule 79(3)).[14]Rule 77 of the Rules provides that: “No [preparation time order] 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.”[15]In interpreting, or exercising any power given to a tribunal under the Rules, it must seek to give effect to the overriding objectives set out in Rule 2 of the Rules, which requires the tribunal to deal with a case fairly and justly, “including so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense.”
Conclusions
[16]Having considered the matter, I am satisfied that I can deal with it fairly and justly on paper. Ordering a hearing to determine the application will be disproportionate to the complexity and importance and will result in further unnecessary delay and costs. In any event, the Respondents did not ask for a hearing.[17]The Respondents were given a reasonable opportunity to make representations. They chose not to do so.[18]Considering the background to this claim and the events at the final hearing, as recorded in my Reasons, I have no difficulty in finding that the Respondents’ response had no reasonable prospect of success and that was known to them from the start of the proceedings. The Respondents’ defence was centered on the argument that the Claimant was not an employee, but a self-employed, when it was plainly obvious that she was an employee, and the Respondents knew that.[19]Although not legally represented at that time, the Respondents had been advised in clear terms by their external HR professional that they were in breach of the law and the Claimant’s claim was likely to succeed. The advice was given first some months before and then immediately after the Claimant presented her claim.[20]Notwithstanding, the Respondents chose to put the Claimant to trouble and expense of taking her claim all the way to the final hearing, just to capitulate at the hearing, accepting that they had no defence to any of the Claimant’s complaints in the claim. This, in my judgment, is an egregious example of unreasonable and indeed vexatious conduct. Put it bluntly, the Respondents knew (or at any rate this should have been obvious to them) that they were going to lose, but they were trying to make as much of a nuisance of themselves as possible in the hope that the Claimant would give up.[21]Therefore, I find that on the facts both Rule 76(1)(a) and Rule 76(1)(b) of the ET Rules are engaged.[22]I also find that the nature, gravity and effect of the Respondents’ unreasonable and vexatious conduct justifies me exercising my discretion and making a preparation time award against them. I accept the arguments put forward by the Claimant in her application of 12 May 2023, to which the Respondents chose not to respond.[23]Finally, I have reviewed the Claimant’s costs schedule and am satisfied that the amount of time spent in preparing and prosecuting the claim, as recorded in the schedule, is reasonable and proportionate to the complexity of the issues in the claim and conduct by the Respondents in the proceedings.[24]For these reasons, I find that the Claimant’s application must succeed. I, therefore, make this preparation time order pursuant to Rules 75-79 of the ET Rules for the Respondents to pay to the Claimant the sum of £6,485.88 in respect of the Claimant’s preparation time while not legally represented.