Miss K Woodroof v Trentside Geotechnical Testing and Site Investigations Ltd and Mr G Wing: 3200747/2020
JUDGMENT
The judgment of the Tribunal is that:- The Claimant’s complaints of direct age discrimination, harassment related to age and victimisation are not well founded. The claim is therefore dismissed. COSTS JUDGMENT The judgment of the Tribunal is that:- The First and Second Respondents are jointly liable to pay £500 plus VAT towards the Claimant’s costs, being a total of £600.REASONS
[1]This is a costs application made on paper by the Claimant following the conclusion of the Final Hearing on 27 September 2021. The Tribunal announced its decision and reasons orally on the afternoon of the third day. The outcome was that all of the Claimant’s complaints were rejected and the claim was dismissed. There was no request for written reasons.[2]Even though all of the Claimant’s complaints were dismissed, the Claimant has made a costs application. This has been supported by the contents of a detailed email dated 25 October 2021. The email asks that the matter be dealt with on the papers. The Respondents have provided their response in an email dated 2 November 2021. The application for a costs order is opposed. Whilst the Second Respondent indicated he would be providing a “follow up email” no such email has been placed on the Tribunal file.[3]So far as is material, Rule 76(1) of the Employment Tribunal Rules 2013 provides that a Tribunal may make a costs order, and shall consider whether to do so, where it considers that a party 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) have been conducted”. Rule 76(2) provides that 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.[4]Rule 84 provides that “in deciding whether to make a costs order, and if so in what amount, the Tribunal may have regard to the paying party’s ability to pay”.[5]Essentially there are three questions for the Tribunal to determine:a. Does the Tribunal have jurisdiction to consider whether to make a costs order?b. If so, should the Tribunal exercise its discretion to make a costs order?c. If so, in what amount should the costs order be made? Does the Tribunal have jurisdiction to make a costs order?[6]Often it is the successful party which seeks a costs order from the unsuccessful party. However, the jurisdiction to make a costs order is not limited based on the ultimate conclusion of the case. It is open to the Tribunal to make a costs order in favour of an unsuccessful party if the threshold provided by Rule 76(1) is met.[7]We have considered the different bases on which the application is made. Our decisions in relation to each of the arguments advanced are as follows:a. The solicitors having to chase for a response to the initial grievance. This does not relate to the conduct of the Tribunal proceedings and therefore cannot amount to unreasonable conduct in relation to those proceedings.b. Ignoring the Claimant’s without prejudice correspondence – we do not consider that this is unreasonable conduct, particularly in circumstances where the Respondent was ultimately successful in having the Claimant’s claim dismissed. In those circumstances, the Respondent has been proved correct in not accepting whatever offer the Claimant made (which has not been disclosed) or not proposing a counter-offer.c. Failing to provide details of the material circumstances of the comparator. EJ Crosfill ordered the Respondents to provide details to the Claimant and to the Tribunal of what they say would be the material circumstances of any comparator. This was to be done by 7 September 2020. There is no indication on the Tribunal file that this was done, nor was there any application for an extension of time. However, what was being asked of the Respondents, who were self-representing and did not have any legal training, was to set out its case on a technical matter of legal analysis. That was a difficult task. We do not consider this is unreasonable conduct in all the circumstances, given that the necessary clarification was provided at the start of the Final Hearing.d. Postponement of Preliminary Hearing. The Claimant suggests that this was postponed from 19 June 2020 and relisted for 3 August 2020 as a result of the Respondents’ fault. From a review of the Tribunal file it appears that the Preliminary Hearing scheduled to take place on 19 June 2020 was postponed on 15 June 2020 in circumstances where the Respondents had asked on 29 May 2020 for an extension of time to file a Response but had not yet done so. There is no specific evidence provided by the Claimant’s solicitors that this postponement caused the Claimant to incur additional expense. Therefore we do not consider that the failure to enter a Response within the required timescale or to submit a draft Response with the application for an extension of time amounts to unreasonable conduct, or a sufficient breach of the Tribunal Rules to give the Tribunal jurisdiction to make a costs order in favour of the Claimant in relation to the costs of the postponed Preliminary Hearing.e. Engagement in Judicial Mediation. The Judicial Mediation and subsequent correspondence arising from the Judicial Mediation is necessarily confidential. It is made clear to both parties as part of that process that they are not entitled to rely on the contents of the Judicial Mediation discussions and outcome for any purposes in relation to the Tribunal dispute. Therefore, we cannot concern ourselves with the outcome of that process. We are unable to make any decision as to whether the Respondents engaged in Judicial Mediation without any intention of settling, as the Claimant alleges.f. Failure to provide copies of documents. We have not seen full details of all correspondence showing how the parties engaged with the requirement to exchange lists and copies of documents. It is not uncommon for documents to be disclosed at a later stage, despite the requirements of a Tribunal order. On the Claimant’s solicitors’ own version of events, some documents were provided on 16 April 2021, several months before the start of the Final Hearing. It is not clear that any further documents were subsequently provided by the Respondents at any point before the start of the Final Hearing. We are not aware of any attempt by the Claimant’s solicitors to seek further orders from the Tribunal given the extent of the Respondents’ alleged non-compliance with directions as to disclosure of documents. We reject this as a sufficient basis for having the jurisdiction to make a costs order.g. Counsel’s fees for the first scheduled day of the Tribunal hearing. This was vacated not as a result of any unreasonable conduct on the part of the Respondents. Rather it was because there was not a judge available to conduct the hearing on the first day. In those circumstances, there is no basis for making a costs order.h. Costs wasted as a result of the Respondents’ technological difficulties in accessing the Final Hearing by Cloud Video Platform. The Second Respondent attended the hearing late on the second day, 3 September 2021, as a result of technical difficulties with his broadband. We are not persuaded that there was unreasonable conduct by the Respondents during periods when Mr Wing did not have sufficient signal strength to be able to access the internet and so access the hearing. This issue happens not infrequently. It is an inherent difficulty in conducting remote video hearings. It is not in itself a basis for making a costs order.i. Need for an additional day’s hearing. The Final Hearing was listed as a three-day hearing. It was reduced to two days because there was no judge available to sit on the first day. Evidence and submissions could not be concluded within those two days and a further third day was listed for this purpose. That day was also used for the Tribunal’s deliberation and in order to provide our decision and the reasons for dismissing the claim. We consider that the case would have been concluded within two days, had it not been for unreasonable conduct on the part of the Second Respondent, for which the First Respondent is liable. The unreasonable conduct is twofold. Firstly, the Second Respondent’s failure to make childcare arrangements meant that the Tribunal was unable to sit for an hour and a quarter during the afternoon of the first day (2 September 2021). This was from 2.45pm and 4pm. The Second Respondent needed to be absent during this time to collect his children from school. Knowing of the dates of the Final Hearing since September 2020, he ought to have made arrangements so that he could attend the Hearing throughout the working day. He did not do so. Secondly, he failed to ensure that the device on which he was accessing the CVP hearing was sufficiently charged. Low battery with only 2% charge was the reason given by the Respondent at 14:40 for why he could not rejoin the hearing. The hearing had been due to restart at 2pm, to continue with the Second Respondent’s evidence. The Second Respondent did not attend at any point during the afternoon of the second day. The result was that a further day had to listed to conclude the Second Respondent’s evidence and for closing submissions. The Second Respondent ought to have ensured his electronic device had sufficient power so that he could participate in the hearing throughout the day. He is a businessman, running a small business. The Tribunal is entitled to expect him to make basic arrangements so he could participate in the hearing throughout. In both respects, the Second Respondent’s conduct was unreasonable. It engages the Tribunal’s jurisdiction to consider whether to make a costs order.j. Conduct on 27 September 2021: The Claimant criticises the Second Respondent’s conduct in failing to attend the hearing at 3pm to hear the outcome of the Tribunal’s deliberations. This was apparently again in order that the Second Respondent could collect his children from their schools. He was then delayed in returning home to continue the hearing given the impact of the fuel shortages. Again, it was unreasonable not to make alternative arrangements for the whole of the working day. However, no significant additional legal costs have been incurred as a result of the Tribunal delaying the promulgation of its oral reasons from 3pm to 4pm to give the Second Respondent the opportunity to return home. Should a costs order be made here?[8]We recognise that it is not always an appropriate exercise of discretion to make a costs order even where the Tribunal has the jurisdiction to do so. We need to consider all the circumstances. Doing so here, we consider it would be appropriate to exercise our discretion for the following reasons:a. As a result of the Second Respondent’s unreasonable conduct, the Claimant has been put to additional expense. That is the expense of having representation at a further (third) day of Final Hearing. Had the Second Respondent made childcare arrangements and ensured his electronic device had sufficient power, the evidence and submissions would in all likelihood have been completed by the end of the second hearing day. The Tribunal would have taken further time on another day to deliberate, reach a decision, and to draft its reasons. Those would then have been sent out to the parties in writing, although there may have been some further legal costs in reading the written reasons. However, importantly, that third day would not have required the parties’ attendance. No legal costs would have been necessary for a third day of the Final Hearing.b. The Second Respondent did not then, and has not since, provided any plausible explanation for his conduct, nor has he advanced any mitigating circumstances beyond the additional time it was taking him to refuel as a result of the fuel crisis on the third day.c. As already indicated, this was not the first occasion during the case when the Respondents had failed to comply with the Tribunal’s orders or reasonable expectations as to the extent to which the parties would engage in the Tribunal process. It seems that the Respondents were late in submitting an ET3 Response, late in providing their documents, and late in exchanging witness statements.d. There is no evidence that either the First and/or the Second Respondent is unable to pay the amount of a costs order. Indeed, the latest available company accounts available on the Companies House website indicate that the company had £135,000 in assets at that point. What level of costs should the Claimant be awarded?[9]The Claimant has attached a Schedule of the Claimant’s costs to his application. This totals £11,972 plus VAT, making a total of £14,366.40. There is a breakdown showing the different aspects of the case which have incurred the costs. There is no breakdown of the additional costs caused by the matters of which complaint is made. Clearly, the Claimant would have needed to incur significant costs in any event in preparing the case, including the preparation of the hearing bundles and a witness statement as well as attending the Final Hearing. Not only was the Claimant represented at the Final Hearing by counsel, there was also attendance by the Claimant’s solicitor for at least part of the hearing. No breakdown has been given as to the basis on which Counsel’s fees have been calculated, beyond a claim for £3,500 plus VAT. We assume that the fee would have been £3000 plus VAT had it been a three-day hearing as originally listed, but an agreement was reached that Counsel would receive an additional £500 for being cancelled shortly before the scheduled first day on 1 September 2021.[10]The onus is on the Claimant to establish its costs application. The Respondents are entitled to the benefit of the doubt where it has not been sufficiently shown that additional costs were incurred as a result of proven unreasonable conduct. It is also relevant to reflect, when exercising our discretion, that this is a case that the Claimant has lost. It is therefore a case that she could have been advised not to pursue, given its ultimate lack of merit.[11]In all those circumstances, we consider that the appropriate sum to award the Claimant is £500 plus VAT (a total of £600) as a contribution towards the costs of counsel’s attendance on the final day of the final hearing, namely 27 September 2021.