Mr A Ward v Arthur Branwell & Co Ltd and N Day: 3203069/2019
EMPLOYMENT TRIBUNALS
Case No 3203069/2019
Between
Mr A WardClaimantArthur Branwell & Co Ltd and N DayRespondent
Before
Employment Judge Housego
Members
Mr D RossMs S BarlowDate 17 May 2021
JUDGMENT
[1]The Claimant was unfairly dismissed by the Respondent.[2]The Respondent is ordered to pay to the Claimant the sum of £18,577.09.[3]The claim for disability discrimination is dismissed.
REASONS
Summary
[1]Mr Ward was summarily dismissed, the Respondent saying that he was guilty of gross misconduct in not performing his duties adequately, and in failing to attend his place of work, or meetings which he was required to attend. Mr Ward says that this was unfair, because his absence was necessary to attend to his wife’s acute health needs (her condition falling within the definition of disability), that they should have been more receptive to the proposals he made to deal with the problem, and that the way they went about it was harassment contrary to the Equality Act 2010.
Law
[2]In respect of a claim for unfair dismissal, the Respondents have to show that the dismissal was for a potentially fair reason1. The Respondents say this was conduct which is one of the categories that can be fair2. It has to be shown that the dismissal was fair3. The employer must follow a fair procedure throughout4, and dismissal must fall within the range of responses of a reasonable employer5. It is not for the Tribunal to substitute its own view of what should have happened, for it is judging whether the actions of the employer were fair, and not deciding what it would have done.[3]There is no claim of automatically unfair dismissal arising leave for family reasons6, and it is not said that this was time off to care for a dependent7.[4]The burden of proof as to the reason for dismissal is on the employer, on the balance of probabilities. There is no burden or standard of proof for the Tribunal’s assessment of whether it was fair to dismiss8. If the dismissal was procedurally unfair the Tribunal has to assess what would have happened if a fair procedure had been followed9.[5]As it is asserted that the dismissal was by reason of unlawful discrimination the Tribunal must be satisfied that in no sense whatsoever was the dismissal tainted by such discrimination. For the discrimination claim, it is for Mr Ward to show reason why there might be discrimination10, and if he does so then it is for the Respondent to show that it was not.[6]This is a case where the claim is of associative discrimination, to which the Equality Act 2010 applies11. Not all aspects of the Equality Act 2010 apply to claims for associative discrimination. They are limited to direct discrimination12 and harassment13 14.[7]It is not possible to bring a claim for associative discrimination from detriment which is something arising from the disability15, because such a claim specifically requires the disability to be that of the Claimant. S98(2) of the Employment Rights Act 1996 Also S98(2) of the Employment Rights Act 1996S98(4) of the Employment Rights Act 1996[4]Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 CA[5]Iceland Frozen Foods Ltd v Jones [1982] UKEAT 62_82_2907 S99 Employment Rights Act 1996[7]S57A of the Employment Act 1996 & Qua v. John Ford Morrison Solicitors [2003] UKEAT 884_01_1401Section 98(4) of the Employment Rights Act 1996 Polkey v AE Dayton Services Ltd [1987] UKHL 8[10]Igen v Wong [2005] ICR 931, Madarassy v Nomura International plc [2007] EWCA Civ 33, Laing v Manchester City Council [2006] I.C.R. 159, and Ayodele v Citylink Ltd & Anor [2017] EWCA Civ 1913[11]EBR Attridge Law LLP & Anor v Coleman [2009] UKEAT 0071_09_301 S13 Equality Act 2010S26 Equality Act 2010 Coleman (Social policy) [2008] EUECJ C-303/06_O[15]S15 Equality Act 2010 8. There can be no claim for failure to make reasonable adjustments16 17 in a claim for associative discrimination. 9. Harassment is defined in S26 of the Equality Act 2010: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Evidence 10. The Tribunal heard oral evidence from Mr Ward and from Mr Day (Company Secretary, and who made the decision to dismiss), and from Jennifer Mayes-Tanner (Mr Ward’s line manager). An appeal was conducted (in the absence of Mr Ward) by the 1st Respondent’s managing director, William Denyer, but he passed away on 13 October 2019, and so the evidence about the appeal was solely documentary. There was a bundle of documents of almost 600 pages. Both Counsel provided written submissions supplemented by oral submissions which are recorded in my typed record of proceedings. Facts found 11. Mr Ward is an analytical chemist. He was the sole analytical chemist employed by Arthur Branwell & Son Ltd., which is a company which makes food additives. It buys in many ingredients which go into its products, and a substantial portion of them come from China. Records of their purity are required to be kept, both because of regulations and customer contract obligations. Mr Ward had a large part in that work. He worked in a laboratory where about seven others worked, in other aspects of the 1st Respondent’s work. 12. Mr Ward is married. His wife has not enjoyed good health. She has diabetes. She has mobility problems. She underwent kidney surgery in 2015 and that was problematic. She fell and broke her leg and had further mobility problems as a result. In February 2019 she was diagnosed with a grade 3 breast cancer. This has required surgery twice, chemotherapy and radiotherapy. 13. Since 2014 Mr Ward has asked for time off to look after his wife. His hours were reduced to 9:00 am to 2:00 pm from 01 September 2014 (126/574). S20 & 21 Equality Act 2010[17]Hainsworth v Ministry of Defence [2014] EWCA Civ 763 From 06 October 2014 it was 9:00 am – 3:00 pm, with ½ hour for lunch (127/574).14. From 06 July 2015 it was 9:30 am – 4:00 pm Monday – Thursday and 9:30 am – 1:00 pm on Friday, for 8 weeks (128/574).15. He sought unpaid leave for 26 & 27 October 2015 saying his wife had injured herself in a fall (132/574).16. On 27 November 2015 he was sent a letter requiring him to improve his attendance. He would no longer be allowed time off to care for his wife, paid or unpaid, and he was expected to book holiday in advance, not retrospectively to cover unauthorised absence (133/574). 17. On 19 February 2016 his hours were changed to Monday to Thursday 9:30 am – 5:00 pm with ½ hour for lunch, and no Fridays for 6 weeks (134/574).[18]From 01 August 2016 Mr Ward resumed working Fridays (135/574).[19]In 2018 he was late every day by between 15 and 40 minutes for a sustained until in March 2018 (139/574). A list of the times is at 400/574 et seq.[20]On 23 January 2019 it was agreed that Mr Ward would work 10:00 am to 5:00 pm with 1 hour for lunch, but no break morning or afternoon, backdated to 01 January 2019, by reason of him being late so often (143/574).[21]Mr Ward’s wife was told on 06 February 2019 that she probably had breast cancer (222/574), and this was confirmed on 27 February 2019 (222/574).[22]Mr Ward was given the week 01-05 April 2019 as compassionate leave. Company policy is that this is only in cases of bereavement.[23]On 23 April 2019 Mr Day wrote to Mr Ward to say that his working days remained Monday – Thursday, but he would work from home 50% of the hours he usually worked as a temporary measure to facilitate his caring for his wife (151/574). Mr Ward did not attend his place of work again.[24]Ms Mayes-Tanner was expecting Mr Ward to come into work, at least for discussions. For example, on 09 May 2019 she emailed him (228/574) to ask what time he would be coming in the next day.[25]On 30 May 2019 Ms Mayes-Tanner wrote to Mr Ward asking about the repeat tests diary which was not up to date, and asking for detail of what had happened (155/574).[26]On 02 June 2019 Mr Ward emailed a supplier in China about contaminant reports about the goods that supplier sold to the 1st Respondent, copied to Ms Mayes-Turner. Ms Mayes-Turner was unhappy that they all seemed to be a year out of date. On 04 June 2019 she asked Mr Ward to set up a diary for all the similar reports needed for future years (160/574).[27]A treatment plan was worked out for Mr Ward’s wife, by 03 June 2019 (229/574), to which she agreed. It was anticipated to last six months (222/574). On 06 June 2019 Ms Mayes-Tanner’s diary recorded that Mr Ward’s wife’s chemotherapy had not yet started, and that he would be in to work on Friday 14 June 2019 (173/574). He did not attend, and nor did he do so on 11, 15, 16, 25 or 26 July 2019 as had been arranged (181- 184/574).[28]On 16 July 2019 Ms Mayes-Tanner emailed to ask Mr Ward about reports known as MSDSs which were on his filing cabinet. They had been recorded electronically, but the paper copies had not been filed. Mr Ward usually asked the receptionist to do this. The files are important for reference in case of emergency, but all save 1 lab assistant had access to the information on the computer system.[29]On 25 July 2019 Mr Day wrote to Mr Ward (186/574). He said that working from home was not working effectively, and expressed concern at the number of meetings Mr Ward had cancelled. They expected him to attend on 26 July 2019, when the temporary arrangement would be reviewed, whether he attended or not. If it was ended he would be required to work in the lab from Monday 29 July 2019 (186/574).[30]Mr Ward did not attend, phoning in to say that his wife was upset from the chemotherapy and hot weather. He said also that one car was not working and the other in the garage, being fixed after overheating. He told Ms Mayes-Tanner that they could come to him, or they could have a conference call.[31]Mr Day and Ms Mayes-Tanner did not want to go to Mr Ward’s home. It did not seem appropriate to them to discuss such matters in his home. They did not want to go to his home because his wife would be there. She had previously (and without foundation) accused Mr Ward of having an affair with Ms Mayes-Tanner. She had insulted Ms Mayes-Tanner’s stepdaughter on her (the stepdaughter’s) Facebook page about a cat Mr Ward and his wife were due to rehome, but did not.[32]The Respondent ceased to pay Mr Ward on 01 August 2019, because he did not return to work.[33]Ms Mayes-Tanner asked Mr Ward to work nonetheless. To access the 1st Respondent’s database his work PC had to be switched on. It was sometimes turned off. On 05 August 2019 Ms Mayes-Turner turned it on for Mr Ward to have access (page 224). The Claimant’s case[34]His wife was very seriously ill, and looking after her was his priority. She did not want anyone else but him looking after her. He was not going to insist otherwise. At the very start he offered – asked – for an unpaid sabbatical to do so. He had not realised that it would take so very long for her treatment to complete. In July 2019 it was planned to be 6 months, and in August he had said that he would not be back that calendar year. He had worked there 10 years, and he thought they should have accommodated him. They did, to some extent, in that he was asked to work solely from home, 50% of the time. That would have worked, but his wife became so unwell after her chemotherapy sessions that he was unable to do anything much.[35]It was deeply distressing to him that he was accused of taking their money while doing no, or little, work and being a 24/7 carer for his wife, because he had asked for unpaid time off.[36]His wife was a private person, and did not want details of her treatment shared with his employer. There was no reason why they should not take his word about the treatment she was receiving, or its effect on her.[37]He was not able to predict when his wife would become unwell, and while she did not need care all day every day, he might be needed at short notice, and so a trip to the office was not possible. Even a half hour meeting, with travel back and forth, was a minimum of 2 hours away from her.[38]If he had been a woman on maternity leave he would have had up to a year away, and in reality the situation was not different.[39]The way they had dealt with him was disability related harassment. The Respondent’s case[40]Over 6 years they had leant over backwards to accommodate Mr Ward’s many requests to change his working hours, and put up with him being late to arrive day after day for months. They had given him a week’s compassionate leave after the diagnosis, which was not company policy and indicated how helpful they were towards him. They were very sympathetic to his request for time to look after his wife, to the extent of permitting him to work a very small amount – 2½ hours a day for 4 days a week (so only 10 hours a week), nd his work did not require set times. They did not want or think it reasonable to expect them to get in a temporary replacement, who would need training, and would be needed for an indefinite period.[41]It was unacceptable for Mr Ward to fall so far behind his work, and the three things he was to take charge of were important to the whole company.[42]It was disingenuous of him to say he could not attend the office at all from 23 April 2019 until August 2019. It was 30 minutes drive outside rush hour. It was not reasonable for him to refuse all other care, either professional or from relatives. Meetings could have been arranged on a provisional basis, to take place if his wife was well enough to leave. There was no medical evidence that she was so unwell all the time that she could not be left.[43]It was gross misconduct not to return to work when required, and reasonable to end the temporary arrangement in the circumstances. Conclusions as to unfair dismissal[44]There are many twists and turns in the narrative history over the months leading to the dismissal. The Tribunal considered all the matter put forward by both parties. This decision sets out the matters the Tribunal thought most relevant so that the parties understand the decision reached and the reasons for it. That the decision intentionally does not deal with every detail does not mean that those details have not been fully considered.[45]This was not a conduct or capability matter. Mr Ward had long prioritised his wife’s poor health over his work, and his employer had accommodated that. That is stated factually, and not a criticism of Mr Ward. When his wife was diagnosed with stage 3 breast cancer he devoted his time to caring for her. She required him to do so, and she would not have professional carers. Again, that is simply factual and is not judgmental: the diagnosis was of a condition that might have been fatal, and sadly a similar diagnosis was fatal for a colleague of Mr Ward’s at a similar time.[46]Mr Ward asked for an unpaid sabbatical to care for her. The Respondent refused. The analogy of a maternity leave is raised. There are, in reality, no real arguments as to why this might not have been possible: the Respondent could have required this to be of a fixed term, such as a year, to enable a fixed term contract to be entered into with a replacement. The training specific to this role was said to take about 3 months in total, but no evidence was given of that, and a trained chemist would be at least partly effective almost immediately. Finding someone might take a while, but the temporary arrangement the Respondent in fact entered into could have carried them through that period. There is little in the evidence of Mr Day that temporary workers tend to earn money and then use it to go travelling and so could not be relied upon. Many interims have a career of short term employment, and others are happy to take short term contracts in the hope that they become permanent.[47]The issue, then, is whether the Respondent was obliged to grant Mr Ward’s request for a sabbatical. The answer is no. There is no obligation on an employer to grant a lengthy sabbatical, possibly of indeterminate length to care for a disabled relative. It is not direct discrimination nor harassment to decline to do so, and it so cannot be associative disability discrimination. (Nor would it be obliged to offer a fixed term sabbatical of (say) a year to obtain certainty of length of absence. This is because even if fixed term it would not be certain that he would return at the end of the period, and in fact would have needed some 17 months.)[48]The Respondent did make great allowances (as it had before) to help Mr Ward. Given that he was not allowed a sabbatical, he accepted those changes. He was to work from home, at 50% of the time he worked before (which was less than full time). It was a couple of hours a day most days of the week, but at any time (or day) he chose.[49]By 03 June 2019 it was clear that Mr Ward’s wife’s treatment would last a further 6 months (296/574).[50]After a while it became apparent that Mr Ward was doing very little work. This was raised in an email of 29 July 2019 (190/574), which said that he had been required to return to work and that the present arrangement was not working, and that if he did not attend this could lead to disciplinary action and termination of employment.[51]Mr Ward did not respond and the Respondent was not happy about this, and wanted to have a meeting with Mr Ward, saying that he was failing to perform his duties and that this was misconduct. He would not come to a meeting, cancelling many appointments. The Tribunal does not doubt that he intended to attend the meetings, but his wife forbade it. Mr Ward’s wife is a very strong willed person, and it is plain that Mr Ward does as she says (this was apparent even during the hearing, as Mr Ward was at home throughout the hearing). This is again not judgmental, and at such a difficult time Mr Ward’s wife may have needed him by her constantly.[52]That fact does not oblige the employer to permit the employee to do little or no work. The submission was that Mr Ward was compelled by his employer to decide between his job and his wife. That is undoubtedly true, because he could not both care for his wife constantly and do his job. If so, the employer is not bound to hold the job open.[53]Mr Ward was not doing any laboratory work, and as he was an analytical chemist there was a limited time during which he could be retained without coming to work. The Respondent accommodated him between April and the end of July 2019.[54]On 03 August 2019 Mr Ward emailed Mr Day (197/574) and told him that he would not be able to attend the office (at all) for the rest of the year. This was in response to Mr Day’s demand that he come in to discuss matters. While that email said that if his wife felt well on consecutive days he might be able to come in, Mr Day was entirely correct to conclude that whatever day it was, on the day Mr Ward’s wife would not let him go. In his oral evidence Mr Ward accepted that this was the case.[55]Unfortunately, Mr Day did not write to Mr Ward, sympathising with his predicament, sending best wishes to his wife, but saying that the present situation was not working out, and that as it was necessary for Mr Ward to devote himself to the care of his wife it now seemed inevitable that his employment would have to be brought to an end as his caring responsibilities precluded him working for the foreseeable future. Had he done so, this case would probably not have been brought. Instead, Mr Day wrote aggressive letters accusing Mr Ward of misconduct in not doing his job, intentionally refusing to attend meetings, and taking the Respondent’s money while not working for them and caring for his wife. Not unnaturally, Mr Ward takes exception to this as he had offered to stay at home without pay, and even to do some work for the company if it needed and he could, without pay. Mr Day scoffed at this, on the basis that it was not legal. Pay at NMW rates would have solved that.[56]Then on 07 August 2019 (202/574) he simply revoked the arrangement by which Mr Ward worked at home, and that Mr Ward had refused to follow a lawful instruction to attend for work on 05 August 2019, and this was insubordination. He would not be paid from 05 August 2019. If he did not attend a meeting on 12 August 2019 disciplinary action would be taken. Mr Day said that Mr Ward going to the hospital with his wife on a Thursday was an unauthorised absence and would not be paid, because it was a work day and even though it was accepted that Mr Ward could work any hours of any day he chose.[57]Mr Ward did not attend, the meeting was rescheduled, Mr Ward did not attend. On 24 September 2019 Mr Ward was dismissed summarily (336/574) for alleged gross misconduct.[58]This was that he had not filed paper copies of some reports (MSDS) (they were on a database but not in a ring binder file); that the product testing diary was not updated; and that supplier contaminants information was not up to date. He had refused or failed to attend meetings on seven dates in July and August 2019; had failed to work to the arrangements agreed from 23 April 2019; had failed to return to work from 05 August 2019; had attended hospital appointments during working hours without notifying the Respondent; that he was taking money from his employer while caring for his wife and not working. It was asserted that Mr Ward was assertive and disingenuous and was lying to them, and would not provide evidence of the medical appointments he said he had been attending.[59]The Respondent has been advised by a (non solicitor) advice company throughout. The correspondence from the Respondent was doubtless drafted by them. Their correspondence with the Claimant’s solicitor was reprehensible, as detailed in a letter from those solicitors to the Respondent on 25 October 2019 (368/574). The bombastic and petty language used, and the approach taken to this whole case by them, and by Mr Day, is regrettable.[60]What has occurred is not a conduct matter, but “some other substantial reason”. There is no fault in Mr Ward looking after his wife, and there is no fault in the employer saying that this means they can’t keep his employment open any more. That is the top and bottom of the reality of this case, and had Mr Day and Mr Southwell of AP Partnership had the common sense and humanity to see that this case would never have been brought.[61]However, it is also regrettable that Mr Ward did not himself tell his employer that he really could not do the limited amount of work which his employer asked him to do by reason of the demands of caring for his wife. They had been really helpful to him, as they had been for years. It was not realistic of him to expect them to carry on indefinitely in this way, with him not doing much work and continually calling off meetings at the last minute. It was clear that he was never going to feel able to leave (or be permitted by) his wife to attend meetings. He knew, and they did not, exactly what the situation was. If he could not work and could not attend meetings either he was going to be dismissed or he should have resigned. When he said in August that he was going to be off until the New Year he did not repeat his suggestion of unpaid leave. On the other hand, the Respondent would not have entertained the idea any more than they would earlier.[62]Mr Ward suggested a retirement. The Respondent understandably thought this a request for a pay off to leave. They declined. The Tribunal finds that there was more in Mr Ward’s mind than he claimed. He said he wanted only notice pay and accrued holiday pay. If that were the case he would have resigned and then discussed the notice pay and holiday pay. More precisely he would have asked if he could be placed on garden leave during his notice. He asked for a payoff to leave.[63]As to the three matters said to be misconduct, the first was the filing of paperwork which Mr Ward asked others to do. Once the oversight was noticed all that was needed was for someone to be asked to do it. The Tribunal did not take as serious that the paper files were not up to date if they were inspected, for everything was filed in a computer held database. This was not a significant failing. In any event it occurred before 23 April 2019, his last day at work and this was months later.[64]Omitting to check the contaminant testing was indeed unfortunate, and embarrassing to the Respondent. However, when it was discovered, instead of making haste to remedy it, other similar matters were put off by Mr Denyer until December, some months later. Plainly the tests were not that time critical. What was unfortunate was that client expectation was not managed. It is, however, not a conduct matter but a performance issue and not one that could fairly lead to dismissal.[65]The report testing database was said to have been an impossible task in the time available, and to do it properly would have taken some time. However, it was clear from the evidence that Mr Ward had done very little in progressing this task. While he was not supposed to be working many hours it was clear that Mr Ward was not working very much. The Tribunal saw it as clear that he had not been working on this task for more than a few hours. There is no reason to think that he was not doing the work deliberately. He had worked for the Respondent for many years and was not regarded as tardy in his work and was considered competent.[66]Again, this was not a conduct issue, but a performance or capability matter. The root cause of it was that Mr Ward was doing very little work. This means that the Respondent had reason to think that they were getting very little for the salary they were paying, such that they were in effect paying Mr Ward to look after his wife. Mr Ward should have addressed this, but when he did not, the Respondent should have dealt with this as set out above, and not as it did.[67]The Tribunal concludes that the dismissal was not a conduct dismissal and so was unfair, but that had a fair procedure been followed a fair dismissal was 100% certain to result at the same time.[68]Ultimately, had Mr Ward had cancer and been off work, or able to work only very little by reason of illness and the effect of cancer treatment for the same periods as his wife’s illness meant he did not work normally, a capability dismissal would have been within the responses of the reasonable employer. It cannot be right that Mr Ward is in a better position when his wife had the cancer and not him.[69]It follows that Mr Ward succeeds in obtaining notice pay, but does not receive a basic or compensatory award, save for notice pay, and pay before dismissal. There was no specific claim for notice pay, but it was clearly in the parties mind as the claim was that this was not a conduct (let alone gross misconduct) dismissal. The Polkey reduction of 100% would not apply at all to the notice period, as had there been a fair dismissal it would have been on notice. Harassment[70]The letters from the Respondent, both Mr Day and later by Mr Southwell from their advisers are hostile and offensive, and entirely misplaced. Mr Day regarded them as simply factual, and says that the facts set out were true, so that was the end of the matter. The letters are not simply factual. They accuse Mr Ward of taking their money under false pretences and say that he was deliberately refusing to do work or attend meetings. These are accusations, not facts. The facts are that the work was not being done and that he was not attending meetings.[71]The Tribunal has taken careful note of the written submission of Ms Mankau starting at the foot of page 17 of her written submission. Dismissing someone however poorly or rudely does not give rise to any additional unfair dismissal award. The Equality Act 2010 at Section 26 introduces the concept of a harassment: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.[72]The first question is whether there was unwanted conduct. Plainly, yes. The Claimant would have wanted a different approach to that taken by the Respondent. What he got was unwanted.[73]Secondly, was it related to a relevant protected characteristic, in this case (his wife’s) disability? Ms Mankau submitted that it the unwanted conduct does not have to be because of, but it is enough that it connected to the protected characteristic. She submitted that as all stemmed from his wife’s cancer and its treatment it is all connected to the protected characteristic of disability. She referred the Tribunal to McDonald v Fylde Motor Company Ltd (ET case 2403390/2010, unreported, where a claimant succeeded in such a claim where pressurised to work extra hours which he could not by reason of caring responsibilities. Ms Mankau recognised that this is not a case to which the doctrine of precedent applies, and it is perhaps surprising that there is no more up to date, or higher Court guidance on the topic.[74]The Tribunal was not persuaded by this argument. The difference, of course, is that Mr McDonald was being asked to work more than his contracted hours, and Mr Ward was being allowed to work less than his contracted hours, and to work from home at limited tasks. It cannot be harassment for the Respondent to agree to less than the employee asks for, and that is the reverse of the employer asking the employee to work more than he is obliged.[75]It might be argued that it was the manner in which the Respondent approached the issue, but that is the next point.[76]The harassment claim also falls at the requirement for there to be a violation of dignity or the creation of an offensive and intimidating environment.[77]The letters written were unfortunate, but to receive such letters is not a violation of dignity. They were insulting, but they did not humiliate Mr Ward: no one else saw them. Nor did Mr Ward raise this assertion until after he realised the limits of associative discrimination precluded the claim progressing as he wished, so that he amended to include the harassment claim. He was unhappy, perhaps even angry, that he was accused of deliberately not working and deliberately not attending meetings, and that he was taking their money while caring for his wife. The Tribunal’s conclusion is that in this case to show violation of dignity required more than this insulting correspondence.[78]The alternative is that there is a hostile or intimidating environment. As envisaged by the Equality Act 2010 S26, in the employment situation, the “environment” is the place of work. Mr Ward did not attend the workplace – that was the issue, or one of them. His home environment was not hostile or intimidating.[79]For these reasons, while deploring the approach and language of Mr Day and of Mr Southwell, the claim for harassment contrary to S26 of the Equality Act 2010 fails and is dismissed.
Remedy
[80]Mr Ward’s pay ceased on 05 August 2019. He was paid £1,092.77 gross per calendar month, which was £780.98 net.[81]He had worked for the Respondent from 01 December 2008. He was summarily dismissed on 24 September 2019. That is 10 full years, and so he was entitled to 10 weeks’ notice. There are 7 weeks between 05 August 2019 and 24 September 2019. The Respondent says this was unauthorised absence as they had unilaterally revoked the working from home arrangement. They were not entitled to do so without consultation, which could have been conducted other than in person (as the hearing, conducted entirely remotely, showed). The failure of such consultation would then have led to dismissal for some other substantial reason.[82]In so far as the pleadings do not encompass a claim under S13 of the Employment Rights Act or for breach of contract in not paying wages due the Tribunal would amend to include such loss: it is clearly pleaded as what happened and loss arising from what is claimed to have occurred. Neither Counsel addressed the issue, which occurred to the Tribunal in deliberation over loss. The claim clearly stated that the Claimant sought to recover loss of earnings (point 5 on the last page of the particulars of claim). The same applies to notice pay.[83]Ms Mankau wanted to cross examine as to Polkey reduction, which was not in the list of issues before the hearing before the Tribunal came to any conclusion on the point. Given the Tribunal’s conclusions on the facts, there is no point in convening a separate remedy hearing to take further evidence on a Polkey reduction: the Tribunal did not accept that this was a conduct dismissal at all, so it would not be relevant. Nor is there any contribution to complicate the calculation, and Ms Mankau accepted that the findings of fact required for the primary decision would determine that issue (were it relevant). In the same way, the Tribunal’s findings of fact are determinative of the Polkey situation relating to the real reason for dismissal.[84]There is no issue of uplift by reference to the Acas code, because the award relates to pay before dismissal and to notice pay.[85]The loss is 17 weeks which the Tribunal awards gross, leaving the Claimant to make any necessary returns for taxation or national insurance. 17 x £1,092.77 = £18,577.09, and the Tribunal orders the Respondent to pay this sum to the Claimant.[86]If either party considers that there is an error in this decision they are invited to apply for a reconsideration rather than appeal immediately.
Law
[1]Subsequent to a hearing on 06-08 and 23 April 2021 I promulgated a judgment which found that the Claimant was fairly dismissed but suffered an unlawful deduction from is wages and was not paid notice pay due to him. Compensation for both was awarded gross.[2]By email of 18 May 2021 the Respondents assert that the calculation should have been made on the net earnings of the Claimant not the gross figure. The Respondents do not challenge the decision itself, or the period of calculation of the gross amount, of the amount of the gross wages, or the arithmetic.[3]The relevant procedural rules are in Schedule 1 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. Those relevant Rules are as follows: RECONSIDERATION OF JUDGMENTS Principles70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72.—(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. (3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part. Reconsideration by the Tribunal on its own initiative 73. Where the Tribunal proposes to reconsider a decision on its own initiative, it shall inform the parties of the reasons why the decision is being reconsidered and the decision shall be reconsidered in accordance with rule 72(2) (as if an application had been made and not refused).[4]The application was made promptly. The Claimant has not made any observations on it.[5]The award relates to notice pay and to deduction from wages, and is not a compensatory award for unfair dismissal. The judgment was that the dismissal was fair. Therefore the way that compensatory awards are usually calculated is not relevant to the judgment in this case.[6]The Tribunal applied Walters (t/a Rosewood) v Barik (Unlawful Deduction from Wages) [2017] UKEAT 0053_16_1302 (13 February 2017). This states that awards under S13 may be awarded gross. The Respondent may either pay gross (and the Claimant must then discharge any liability to tax and national insurance), or the Respondents may meet that liability itself (and employer’s national insurance liability) and pay the net amount to the Claimant. The Respondents must do one or the other.[7]The Tribunal took the same approach to the notice pay claim. In any event the Tribunal may award compensation in any way that it decides is just and equitable: Toni & Guys (St Paul's) Ltd v Georgiou (Unfair Dismissal: Compensation) [2013] UKEAT 0085_13_1907 (19 July 2013), and the Tribunal considered that the same will apply to the notice pay claim.[8]Accordingly, I consider that there is no reasonable prospect of the original decision being varied, and so refuse the application for a reconsideration.[9]McPherson v BNP Paribas (London Branch) (1) [2004] EWCA Civ 569 (13 May 2004, paragraphs 39-41:39. Ms Mc Cafferty submitted that her client's liability for the costs was limited, as a matter of the construction of rule 14, by a requirement that the costs in issue were "attributable to" specific instances of unreasonable conduct by him. She argued that the tribunal had misconstrued the rule and wrongly ordered payment of all the costs, irrespective of whether they were "attributable to" the unreasonable conduct in question or not. The costs awarded should be caused by, or at least be proportionate to, the particular conduct which has been identified as unreasonable.40. In my judgement, rule 14 (1) does not impose any such causal requirement in the exercise of the discretion. The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring BNP Paribas to prove that specific unreasonable conduct by Mr McPherson caused particular costs to be incurred. As Mr Tatton-Brown pointed out, there is a significant contrast between the language of rule 14(1), which deals with costs generally, and the language of rule 14(4), which deals with an order in respect of the costs incurred "as a result of the postponement or adjournment." Further, the passages in the cases relied on by Ms McCafferty ( Kovacs v. Queen Mary & Westfield College [2002] IRLR 414 at para 35 Lodwick v. London Borough of Southwark [2004] EWCA Civ 306 (at paras 23-27) and Health Development Agency v. Parish EAT/0543/03, BAILII: [2003] UKEAT 0543_03_2410, LA at para 26-27) are not authority for the proposition that rule 14(1) limits the tribunal's discretion to those costs that are caused by or attributable to the unreasonable conduct of the applicant.41. In a related submission Ms McCafferty argued that the discretion could not be properly exercised to punish Mr McPherson for unreasonable conduct. That is undoubtedly correct, if it means that the indemnity principle must apply to the award of costs. It is not, however, punitive and impermissible for a tribunal to order costs without confining them to the costs attributable to the unreasonable conduct. As I have explained, the unreasonable conduct is a precondition of the existence of the 1 All the guidance is taken from LexisNexis PSL, and I acknowledge its derivation. Not all of it is relevant to this case, but it is helpful as it sets out the principles overall, which gives context. power to order costs and it is also a relevant factor to be taken into account in deciding whether to make an order for costs and the form of the order.[10]For a costs order: 1. there is nothing in the wording of the ET Rules to limit the costs that may be awarded by an employment tribunal to those costs incurred at a particular stage of the proceedings or indeed to costs incurred after they have begun 2. the Tribunal's discretion to award costs where a party has conducted the proceedings in an unreasonable way is not limited to those costs that are caused by, or attributable to, the unreasonable conduct of that party 3. the Tribunal is not required to identify the particular costs caused by particular conduct; rather it should look at the whole picture of what happened in the case and the effects of such conduct 4. the conduct of the litigation by the party applying for the costs order can be taken into account 5. the conduct of a claimant in rejecting a ‘Calderbank’ type offer of settlement can be taken into account, provided the claimant is found to have been unreasonable in rejecting the offer 6. although the CPR do not apply directly to Employment Tribunal proceedings, Tribunals should exercise their powers under the ET Rules in accordance with the same general principles which apply in the civil courts, but they are not obliged to follow the letter of the CPR in all respects.[11]Costs orders are not to be imposed for punitive reasons, and the Tribunal is entitled, but not obliged, to consider the ability of the paying parties ability to pay. It should give reasons.[12]For wasted costs orders: The government guidance on employment tribunal powers (derived from the seminal case of Ridehalgh v Horsefield [1994] Ch 205) states that: 1. ‘improper’ covers but is not confined to conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice and other serious professional penalty 2. ‘unreasonable’ describes conduct that is vexatious or designed to harass the other side rather than advance the resolution of the case 3. ‘negligent’ should be understood in a non-technical way to denote failure to act with the competence reasonably expected of ordinary members of the legal profession.[13]The Tribunal should apply a three-stage test in determining whether to make a wasted costs order: 13.1. has the representative of whom complaint is made acted improperly, unreasonably or negligently? 13.2. if so, did such conduct cause the party applying for the order to incur unnecessary costs? 13.3. if so, is it in all the circumstances just to order the representative to compensate that party for the whole or any part of the relevant costs?[14]The following further guidance summarises the correct approach to wasted costs applications: 1. The wasted costs jurisdiction should only be exercised with great caution and as a last resort. Both the aggrieved party and the court or tribunal have other powers to remedy the situation by invoking summary remedies such as striking out. The making of a wasted costs order should not be the primary remedy 2. A wasted costs order should be made only if the court or tribunal is satisfied that the conduct of the representative was improper, unreasonable or negligent 3. A wasted costs order should not be made unless it is supported by evidence. For example, where there has been a failure in disclosure, it cannot simply be assumed that there was either negligence on the part of the representative concerned or that the failure in disclosure amounted to a failure by the representative in his or her duty to the court 4. A representative should not be held to have acted improperly, unreasonably or negligently simply because he acts on behalf of a party who pursues a hopeless case 5. The Tribunal can only make a wasted costs order in such a case if it is shown that: 1. the representative has presented a case which he regards as bound to fail, and 2. in so doing, he has failed in his duty to the court, and the proceedings amount to an abuse of the process 6. Behaviour by a representative will amount to an abuse of process if eg: 1. he uses litigious procedures for purposes for which they were not intended, such as the knowing pursuit of dishonest cases, or the pursuit of proceedings for reasons unconnected with success in the litigation 2. he evades rules intended to safeguard the interests of justice, eg by knowingly conniving at incomplete disclosure of documents 7. A representative owes no duty to the opposing party: only failures in duty to the court or tribunal can provide a foundation for wasted costs applications 8. The wasted costs jurisdiction should not be applied in such a way as to undermine the willingness of professional advocates to represent litigants, either by creating conflicts of interest or by exposing the advocates to pressures which will tend to deter them from representing certain clients or from doing so effectively. At times, the proper discharge by the advocate of his duties to his client will be liable to bring him into conflict with the court: the advocate acting in good faith in such circumstances is entitled to protection 9. It must be shown that the conduct complained of caused the party applying for the wasted costs order to incur unnecessary costs. For example, if a wasted costs order is sought relying on a representative's failure to advise his client during trial that the case has become hopeless, such an application could not succeed if it were established that the litigant would have pursued the trial to the bitter end despite receiving that pessimistic advice 10. The court or tribunal must exercise a discretion at two stages: 1. it must first consider whether the application is justified and proportionate, having regard to the merits and circumstances 2. if that first test is passed, the application will proceed to a hearing at which the court or tribunal has to: 1. decide whether the central prerequisites for an order are made out, and 2. if they are made out, exercise its discretion as to whether to make an order or not. 11. Despite the care with which wasted costs applications need to be approached, tribunals should not be discouraged from making wasted costs orders in an appropriate case. Despite the various cautions and caveats about its use, the weapon of the wasted costs order is a valuable one, which the rule-maker intended should be used in proper cases. The need to observe the essential requirements of a fair procedure and good reasons need not involve undue formality or elaboration and should not operate as a deterrent. The application[15]The costs order is made because of the way the matter was conducted by the Respondents, both before and after the action started.
Evidence
[16]The wasted costs application is on the basis that the Claimant incurred costs as a result of the improper, unreasonable or negligent acts on the part of the Respondents’ Representatives.[17]The total claimed is £38,109.60, and a schedule of costs was annexed to the application.[18]The judgment said at paragraph 59: “The Respondent has been advised by a (non solicitor) advice company throughout. The correspondence from the Respondent was doubtless drafted by them. Their correspondence with the Claimant’s solicitor was reprehensible, as detailed in a letter from those solicitors to the Respondent on 25 October 2019 (368/574). The bombastic and petty language used, and the approach taken to this whole case by them, and by Mr Day, is regrettable.”[19]At paragraph 70: “The letters from the Respondent, both Mr Day and later by Mr Southwell from their advisers are hostile and offensive, and entirely misplaced. Mr Day regarded them as simply factual, and says that the facts set out were true, so that was the end of the matter. The letters are not simply factual. They accuse Mr Ward of taking their money under false pretences and say that he was deliberately refusing to do work or attend meetings. These are accusations, not facts. The facts are that the work was not being done and that he was not attending meetings.”[20]At paragraph 77 the letters are described as “insulting”, and at paragraph 79 the Tribunal deplored the language and approach of Mr Day and Mr Southwell.[21]The application pointed out that: 21.1. On 01 August 2019 Mr Day wrote and said that Mr Ward was making “empty promises” which he had “no intention or prospect of achieving”, and that he was taking the opportunity to be paid by them while caring for his wife. 21.2. The application sets out further communications which it is said meant that Mr Ward needed to obtain legal advice, and incur expense. 21.3. The dismissal letter included “...I believe that Andrew [the Claimant] has at all times been deceptive and disingenuous...” and the Tribunal did not accept that this was so. 21.4. The correspondence warranted the Tribunal’s criticism, for example in their email to the Claimant’s solicitors dated 26th September 2019 that “...you have made no effort whatsoever to put forward a case on your Client’s behalf. I can only assume that your ‘endeavours’ are focused elsewhere on a matter that you feel is more important than acting in his best interest and, if I were him, I would be most aggrieved by your tardiness” and impermissibly criticised them directly “(and if you advised him not to do so then you were quite remiss to do so)”. 21.5. The correspondence continued for some time, and on 08 November 2019 included: it appears that I have ‘touched a nerve’... Regrettably, I believe that you have been somewhat ‘put out’ after having thought at the outset that you could simply present an allegation of discrimination to my Client and receive a substantial settlement without putting in much effort or work, only to be taken aback by receiving a robust rebuttal on their behalf”. “I therefore believe that your inference, along with your allegations of unprofessional and inflammatory conduct, is nothing more than an attempt to scaremonger”. “I must say it is baffling that you purport to be a specialist in employment law, yet it seems that you are ignorant of such a basic, inherent and long-standing legal principle”. “My Client...does not wish to correspond any further as it is clear that your Client has no valid claim...we invite you to proceed accordingly ...the proceedings will be defended rigorously”. 21.6. After proceedings had commenced the Respondents’ representative emailed (on 09 June 2020) in similar vein: “Your claim to be so confident of success also rings hollow when faced with the facts, and I must say that such false bravado is typical of the way you have acted throughout”. “I also reject your contention that either I or my Client have been unreasonable in conduct. Demonstrably, it has in fact been your conduct of proceedings that has been unreasonable with numerous delays and prevarication, incorrect legal opinion and inconsistencies and contradictions in your Client’s case”. “I stand by my comments...provided dubious excuse for your Client’s failure to carry out little or no work and / or taking unauthorised time off. Along with exhibiting a complete lack of awareness regarding your Client’s right to time off”. “...then attempted a ‘johnny come lately’”. “I also believe that you are only keen to suggest entering into settlement negotiations as you are aware of the tenuous nature of your Client’s case”.[22]The whole approach taken by the Respondents’ representative is said to have resulted in the necessary cost of dealing with what are described as unprofessional emails. These are particularised in the application: In an email dated 20th September, Andrew Southwell [of AP Partnership Ltd] stated “If you cannot act promptly on your client’s behalf then you are failing to act in his best interests and I would suggest he seeks alternative assistance.” th September, AS stated “I must say that it is In an email dated 20 concerning that it seems you are advising him not to attend the rearranged hearing . . .” th September, “you have made no effort In an email dated 26 whatsoever to put forward a case on your Client’s behalf. I can only assume that your ‘endeavours’ are focussed elsewhere on a matter that you feel is more important than acting in his best interests and, if I were him, I would be most aggrieved by your tardiness.” th September, “(and if you advised him not to do In an email dated 26 so then you were quite remiss to do so)” th October, “I must also take the opportunity to In an email dated 4 highlight an apparently deliberate omission . . .” th October, “I must say that this is clearly ‘faux’ In an email dated 4 ignorance on your part.” th October, “I … believe that you chose not to do In an email dated 11 so as you were aware of the inherent weaknesses in your Client’s position and simply did not wish to waste any more time in collating and forwarding the information as a consequence.” th November 2020, “I must say it is baffling that you In an email dated 8 purport to be a specialist in employment law, yet it seems that you are ignorant of such a basic, inherent and long-standing legal principle.”[23]The application is put thus: “It is the Claimant’s contention that Andrew Southwell’s (AS) inflammatory comments, negligence, improper and unreasonable conduct throughout the proceedings directly contributed to the costs that the Claimant incurred in bringing the proceedings against the Respondents. The Claimant maintains that if AS had adopted a conciliatory approach and showed some humanity towards his circumstances, he would not have pursued his claims to the Employment Tribunal or incurred the costs within his Schedule of Costs. As such, the Tribunal should award the Claimant costs orders for the payment of his legal costs incurred including costs related to this application pursuant to Rule 80(1)(a).”[24]The application points out that in the judgment, at paragraph 60 the Tribunal found: “What has occurred is not a conduct matter, but “some other substantial reason”. There is no fault in Mr Ward looking after his wife, and there is no fault in the employer saying that this means they can’t keep his employment open any more. That is the top and bottom of the reality of this case, and had Mr Day and Mr Southwell of AP Partnership had the common sense and humanity to see that this case would never have been brought.”[25]The Claimant asked that the Employment Tribunal should apply Mummery LJ’s legal principles in McPherson v BNP Paribas (London Branch) [2004] EWCA Civ 569 that there was no need to prove that specific unreasonable conduct caused particular costs to be incurred. The Claimant also asks that the Tribunal apply Mummery LJ’s judgment in McPherson which observed that rules 74-76 of the Tribunal Rules do not, on their face, limit the scope of costs that may be awarded to those incurred after the proceedings have begun. Response[26]AP Partnership responded to the application, on 29 October 2021. They wrote: 26.1. The Respondent holds that whilst it is clear that the phrasing of certain correspondence issued by the Respondent and the Respondent’s Representative was considered regrettable by Employment Judge Housego, the actual effect and overall impact of that correspondence was not prejudicial to the conduct of the proceedings with regard to the Overriding Objective… 26.2. The determination of the Tribunal was arrived at, with observance of the Overriding Objective, regardless and in spite of the phrasing of the aforementioned communications and therefore the Respondent holds that the conduct of proceedings remained unaffected. It is also presented that even had the aforementioned communications been phrased in a more palatable manner, the determination of the Tribunal would have been the same, therefore disruption to the proceedings did not occur related to the phrasing of communications. 26.3. The Respondent would also respectfully advance the argument that the Respondent and the Respondent’s Representative’s displayed no vexatious conduct (and the costs application is not fully illustrative as to why any conduct should be considered as such), relying upon Marler Ltd v Robertson 1974 ICR 72 “For something to have been pursued in a vexatious manner it must be that it is pursued not with the expectation of success but to harass the other side or out of some improper motive.” The Respondent and the Respondent’s Representative acted at all times with an expectation of success. 26.4. Further, the fact that a costs order may be considered at all is not indicative that a costs order is appropriate when taken in context with the totality of the facts.[27]We note that costs can be claimed for expense incurred before issue of a claim, and MacPherson remains good law, even after changes in the Rules2.[28]The costs and wasted costs orders do not have to be directly attributable to specific items of costs incurred3.[29]The judgment was highly critical of the approach taken by the Respondents, and of the correspondence of their representative (paragraphs 59 and 70 particularly.)[30]The representations set out above are, in essence, that the way the case was conducted made no difference to the costs incurred. The Tribunal disagrees. The Tribunal noted also no acceptance that the approach was wholly wrong, referring only to the Tribunal’s view of it, and contained no apology.[31]The representations come from AP Partnership Ltd., and do not deal at all with the issue of conflict of interest. That is a matter for the Respondents to take up with them if they wish, but not something the Tribunal can address.[32]It is abundantly clear that that approach vastly inflated the costs of the Claimant, both before and during the proceedings, right up to their conclusion. At the very least the emails from Mr Southwell had to be considered, the Claimant advised and thought given as to how to respond. During the hearing Mr Day did not resile from the statements of the Respondents’ position set out throughout (for example seeking to defend some of the accusations made as simply factual4).[33]We decide that the conduct of the 1st Respondents (by the actions of the 2nd Respondent Nigel Day) was vexatious, abusive and unreasonable, throughout.[34]We decide that the conduct of their representative, Andrew Southwell of AP Partnership Ltd, was undoubtedly improper as defined above – that word covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice and other serious professional penalty. As the Judge observed in the hearing, had Mr Southwell been a solicitor, his correspondence and approach to the litigation, if referred to the Solicitors Regulatory Authority would be highly likely to lead to a referral to the Solicitors Disciplinary Tribunal and a sanction being imposed by that Tribunal.[35]This was directly in contradiction of the overriding objective5, which expressly obliges parties to cooperate with one another, and to save expense. The tests set out above6 is met. The Tribunal decided to exercise 2 Sunuva Ltd v Martin [2017] UKEAT 0174_17_1412 (14 December 2017) 3 Paragraphs 39-41 of McPherson. 4 Paragraph 70 of the decision 5 Rule 2 6 Paragraph 13 its discretion and decided that both a costs order and a wasted costs order should be made.[36]No information was provided to the Tribunal about the means of Respondents or of their representative. One of the Respondents is a trading limited company, the other the key person within it. The representative is a trading company engaged in representation in Employment Tribunals, and human resources advice and health and safety. There is no reason to think that any of them are short of funds.[37]Employers lose unfair dismissal cases without incurring costs, however unfair their decisions are, if they conduct their cases properly. The cost of running a simple Employment Tribunal claim, which in essence this should have been, is perhaps £7,500. Counsel’s brief fee was not excessive, and the case would not have lasted so long had the Respondents and their representative complied with their obligations under the overriding objective.[38]Perusal of the schedule of costs reveals multiple entries such as 11 September 2019 “Perusal of lengthy email by Respondent and sending lengthy email to client with advice” of £150. The entire way the matter was handled by the Respondents greatly increased the costs incurred by the Claimant. Overall, perusal of the costs schedule does not reveal anything which looks excessive for the work that was required. The charging rate was £300 an hour, which is not excessive.[39]In assessing the amount of the orders we take note of McPherson at 41 - It is not, however, punitive and impermissible for a tribunal to order costs without confining them to the costs attributable to the unreasonable conduct.[40]Mr Day and Mr Southwell were both to blame for this. Whether Mr Day gave instructions which Mr Southwell should not have followed, or Mr Southwell gave advice which Mr Day should not have acted on is not knowable. In all the circumstances we consider that they are both responsible for the way the matter was handled. It seems to us most likely that Mr Day came to Mr Southwell with the approach he wanted to take, and that Mr Southwell egged him on.[41]The Respondent’s representative is a company which trades as advisers for employers. They have a responsibility to their clients as they hold themselves out as experts in the field. It is not an excuse that the adviser does not hold a professional legal qualification. Whatever Mr Day’s view was, they had an obligation to assist their client to carry out the defence in a cooperative way. The way this was done could not be further from that obligation.[42]Given the way the defence was mounted, it was entirely reasonable – indeed sensible – for Mr Ward and his solicitor to instruct Counsel to represent Mr Ward at the hearing. If the case had been conducted properly by the Respondent that may well not have been necessary. The incurring of those costs was down to the Respondent and his representative.[43]In assessing the amount to be ordered, we note the sum claimed in the application was £38,109.60. The costs schedule is at £26,409.60. With vat of £5,281.92 that is £31,691.52. Counsel’s fees were £1500, £720, £1080, and £8,400, all including vat. That is £11,700. The total would appear to be £43,391.52, but the sums add up to £38,109.60 (Solicitor and Counsel) if the costs schedule figure is inclusive of vat.[44]We assess costs on the figure given in the application (of £38,109.60) so there can be no unfairness to the Respondents or to their representative.[45]This was conduct both by Respondents and by their representative which may accurately be described as egregious, and which undoubtedly led to considerably increased costs being incurred by the Claimant.[46]We decide that it is fair proportionate and appropriate to make a costs order against the Respondents (jointly and severally) of £10,000 and a wasted costs order of a further amount of £18,000 against AP Partnership Ltd. This leaves the Claimant to bear the cost which he would have borne had the Respondents and their representative acted as they should have done, with some leeway in favour of the Respondents and their representative.