Mr B Krol v The Haulage (Holdings) Organisation Ltd: 3303594/2020

EMPLOYMENT TRIBUNALS

Case No 3303594/2020

Between

Mr B KrolClaimant

The Haulage (Holdings) Organisation LtdRespondent

Before

Employment Judge K Welch

Mr L Werenowski (instructed by Counsel) for claimant

Ms L Gould (instructed by Counsel) for respondent

Date 11 May 2022

REASONS

Introduction

[1]Reasons having been given orally on 28 January 2022, the claimant requested written reasons by email dated 10 February 2022, which unfortunately, was only referred to me on 22 April 2022.

[2]This is a claim brought by the Claimant originally against his former employer for automatic unfair dismissal for health and safety reasons and against his former employer and manager for race discrimination.

The hearing

[3]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under rule 46. The tribunal considered it as just and equitable to conduct the hearing in this way.

[4]In accordance with Rule 46, the tribunal ensured that members of the public could attend and observe the hearing. This was done via a notice published on Courtserve.net. One observer from the Respondent attended although no members of the public attended. The participants were told that it was an offence to record the proceedings.

Background

[5]The parties were able to hear what the tribunal heard and see the witnesses as seen by the Tribunal. From a technical perspective, there were no difficulties with the hearing being held remotely.

[6]A Polish interpreter was booked to attend the remote hearing, although, having not received the log in details in advance, was slightly late joining. The Claimant’s representative confirmed that the interpreter was required to assist the claimant during cross examination, but would not be required to interpret the hearing generally since he had a good grasp of English, despite it not being his first language. It was therefore agreed that the interpreter would remain in the hearing, and should the claimant not understand something, he would raise his hand. The interpreter and his representative agreed to inform me should he do so, should I not notice.

Background

[7]The claim form was presented on 31 March 2020 following a period of early conciliation from 27 March to 30 March 2020.

[8]A preliminary hearing for case management was held on 17 February 2021 before EJ Cassel which resulted in a Case Management Order [P47-52].

[9]The claimant withdrew his claim for race discrimination against both respondents and therefore the claim for direct race discrimination against the first respondent and all claims against the second respondent were dismissed in a Judgment dated 12 January 2022 [P70]. 10. l had been provided with an electronic bundle of agreed documents of approximately 500 pages and page numbers referred to in this Judgment refer to page numbers within that bundle. I was also provided with witness statements for all witnesses attending to give oral evidence.

[11]I therefore heard from the following witnesses:a. The claimant himself;

b. Mr N Dutton, former Head of Compliance of the Respondent;

c. Ms R Savry, Planning and Operations Manager of the Respondent; and

d. Mr G Schofield, Group Driver Trainer of the Respondent.

[12]It was agreed by all parties, that I would consider liability and go on to consider remedy should the claimant succeed in his claim for automatic unfair dismissal. List of issues

[13]The parties had agreed a draft list of issues during the preliminary hearing which were set out in the case management order, however, in light of the withdrawal of the race discrimination complaints, it was necessary to revisit the list. It was therefore agreed that the only issues on liability to be decided at the hearing were as follows:

[14]Automatic Unfair dismissala. What was the reason or principal reason for the Claimant’s dismissal?

b. Was the reason for the claimant’s dismissal an automatically unfair reason pursuant to section 100 (1) (c) or alternatively, 100 (1) (d) of the Employment Rights Act 1996 (‘ERA’)?

Findings of fact

[15]The claimant was employed as a HGV driver by the respondent, a company which transports freight by road. The claimant was employed from 30 September 2019 until his dismissal on 17 March 2020.

[16]The claimant’s role involved transporting tonnes of chicken carcasses in liquid (referred to as ‘chicken slurry’) in a 44 tonne lorry to the respondent’s customers for use in dog food.

[17]The trailers transporting the chicken slurry were covered with tarpaulin which the claimant considered was dangerous since, should the driver have to brake suddenly or swerve, it was highly likely that chicken slurry would spill out of the trailer. I accept Ms Savry’s evidence that this is standard industry practice for the transportation of chicken slurry. It is not possible to have trailers with a hard top due to the gases which are released from the chicken slurry. Further, the lorries have splash plates to try and minimise losses from the trailer. Additionally, the drivers are trained to ensure that they drive cautiously and keep the correct distances between themselves and vehicles in front of them in order to avoid unnecessary sharp braking and therefore spillage.

[18]The claimant considered that the practice of changing over trailers in a lay by was dangerous since it meant that drivers would reverse into the lay by from an A road. The respondent gave evidence that drivers are not meant to reverse from A roads in order to change trailers.

[19]The claimant had been provided with a contract of employment [P 70 – 81]. In addition, the respondent had a number of policies governing various situations relating to the claimant’s employment. These included a disciplinary policy and procedure [P146 – 152], a driver accident reporting pack [P169 – 172], driver statement [P173 – 175] together with various policies for dealing with transport spillage. Other than the disciplinary procedure, all of the policies were available with Polish translations.

[20]These policies made clear that all accidents or incidents, including any spillages, must be reported to the respondent so that they could be properly dealt with. It was clear, and accepted by both parties, that a spillage of chicken slurry onto the road could cause a hazard to other road users.

[21]Some vehicles were provided with cleaning kits although it was accepted that the lorry driven by the claimant in relation to the incident on 11 March 2020 did not contain such a kit. It was not a legal requirement for the vehicles to carry this cleaning equipment.

[22]The claimant had been inducted in to the respondent’s organisation when he commenced employment. This consisted of one day of training on 30 September 2019 during which he sat with Mr Schofield and two other new drivers. As part of this training, the claimant watched various powerpoint demonstrations and carried out training modules on laptops. The Claimant initially disputed that he had received any training from the respondent, other than taking a driving assessment and had been asked to purely sign the training record [P96 – 97]. However, in cross-examination, he accepted that he had undergone some training on 30 September but could not say that he had been trained in all of the modules contained within the training record. Mr Schofield’s evidence, which I accept, was that he had been through the training with the claimant, some of which were PowerPoint demonstrations and some of which were modules watched on a laptop computer.

[23]The claimant gave evidence that he did not consider it was possible for all of the matters contained on the training record at pages 96 to 97 to have been discussed during the one day induction. I do not accept this.

[24]There was a concern raised by the claimant that on a number of documents within the agreed bundle, the signature did not appear to be that of the claimant’s. There did appear to be some differences between the signatures although I accept the evidence of Mr Schofield who said that, despite the differences, the claimant had signed these documents in his presence.

[25]Therefore, I am satisfied on the balance of probabilities that the claimant had signed the various documents contained within the agreed bundle. It was clear that there were a number of signatures required on the induction day and that the claimant may not have recalled doing so, and may have signed in a different way to usual.

[26]I am therefore satisfied that the claimant did undergo some training in respect of his role and was provided with the various policies referred to above, many of which had been translated into Polish.

[27]During the claimant’s employment there were two incidences of spillages allegedly occurring whilst the claimant was driving. These were said to have occurred on 27 January 2020 and 9 March 2020. These spillages had not been reported by the claimant, as required by the respondent’s policies, but were brought to the attention of the respondent by other drivers who had either witnessed the claimant cleaning down a vehicle following a spillage or had complained about the state of a vehicle being handed over to them by the claimant.

[28]On 11 March 2020, the claimant drove his lorry containing chicken slurry. At approximately 10:30 PM, the lorry in front of the claimant dropped a pallet into the road causing the claimant to swerve and brake to such an extent that there was a large spillage of the chicken slurry over the claimant’s lorry and onto the road. The claimant reported this spillage although, confirmed at the time that there was no chicken slurry in the road since he was able to clean up the spillage. There were photographs provided of the vehicle before and after his clean up [P300-305] and it was clear that a significant amount of chicken slurry had been lost from the trailer due to the incident.

[29]However, there was no requirement for the respondent to send out a cleaning team to the site, since the claimant had confirmed when he reported the incident that the road was clear.

[30]From various documents contained within the bundle, the claimant sought to show that approximately 2,000 kg of chicken slurry had exited the vehicle as a result of the incident on 11 March 2020. However, I accept the evidence of Ms Savry that whilst a significant amount of chicken slurry had been lost due to the incident (being approximately 20 – 40 kg) the difference in weights of the vehicle was explained by the removal of water from the product when it arrived at the customer’s site and that the loss was therefore much less than that suggested by the claimant.

[31]There was an initial investigation into the spillage carried out by Mr Dutton and one of his colleagues. As part of this investigation, the respondent identified that the tachograph equipment within the claimant’s lorry had been damaged. Also that files had been deleted from the lorry’s dashcam so that the incident from 11 March could not be viewed.

[32]At approximately the same time as that initial investigation was taking place, Mr Dutton was informed about the claimant’s involvement in earlier spillages which had not been reported to the respondent in line with its policies and procedures. The respondent’s landlord had complained verbally to Mr Dutton about effluent being found in a wash bay on 10 March 2020. Mr Dutton requested the landlord to confirm this in an email which he did on 12 March 2020 [P318].

[33]Mr Dutton arranged for the claimant to be invited to an investigation meeting on 17 March 2020. The invitation letter dated 12 March 2020 [P329] informed the claimant that the investigation related to, “three incidents where two have not been reported by [the claimant] and one which has been reported which happened on 11 March 2020 at 22.30 hrs. This then resulted in us looking for the footage and finding issues where the tacho head was damaged, and files deleted from the nextbase dashcam.”

[34]The claimant was informed that Mr Dutton would be carrying out the investigation and that he would be accompanied by Mr Bolton who would attend as notetaker.

[35]Prior to the investigation meeting taking place, Mr Dutton obtained a spillage report relating to the incident on 27 January 2020 [P275 – 281], a spillage report relating to the incident on 9 March 2020 [P318 – 326], a spillage report relating to the incident on 11 March 2020 [P282 – 314], photos of the damaged tachograph after the incident on 11 March 2020 [P315] and screenshots showing issues relating to the recovery of the dashcam footage from the incident on 11 March 2020 [P316 – 317].

[36]The claimant requested a postponement of the investigation hearing since he had received the invitation on Saturday, 14 March 2020 and he did not consider he had sufficient time to prepare. He sent an email to Ms Bruce, HR administrator for the respondent, on 16 March 2020 [P330] which requested a, “change the date of appointment. I am currently waiting for feedback from United Road Transport Union and [availability] of Spire solicitors LLP”.

[37]The claimant’s evidence was that the postponement had been agreed and he was awaiting a date for that meeting. He thought he may have spoken to Ms Bruce to confirm this. Whilst Ms Bruce did not attend the tribunal to give evidence, I accept Mr Dutton’s evidence that any such postponement would have been discussed with him and he had not agreed to accommodate this postponement. Therefore, whether or not the claimant had been told that a postponement was agreed, I accept that Mr Dutton and Mr Bolton were expecting the claimant to attend the investigation meeting at 5pm on 17 March 2020.

[38]There were minutes of an earlier investigation meeting contained within the bundle [P338 – 339] which suggested that an earlier meeting had taken place at 8:45 AM on 17 March 2020. Both parties agreed that no such meeting had taken place and it was therefore concerning that minutes had been prepared and disclosed for a meeting which had clearly not taken place. However, whilst I am concerned about these minutes, they do not affect the evidence of the witnesses concerning the actual meeting which took place on 17 March 2020. There was no suggestion that Mr Dutton had fabricated these minutes.

[39]There was a difference in evidence concerning the timing of the meeting between the claimant and Mr Dutton on 17 March 2020. The claimant says that he arrived for his shift which commenced at 6pm as he considered that the investigation meeting had been postponed. Mr Dutton’s evidence was that the claimant was late for the 5pm investigation meeting but arrived at approximately 5:35/5:40pm. When he was seen to have arrived, Mr Dutton says that he sent Mr Bolton to collect the claimant in order to start the investigation meeting, which appeared to be accepted by the claimant.

[40]The claimant’s evidence was that he saw an unusual car, which he assumed to be from management, in the car park and, as he was concerned, arranged to send a grievance letter referred to below on his way to the meeting.

[41]Mr Dutton’s evidence was that the grievance letter was sent after the meeting on 17 March 2020 during which he had dismissed the claimant.

[42]I am satisfied that the claimant sent his grievance email at 6:13pm, which he resent again at 6:17pm, both having been sent after his meeting with Mr Dutton. The timeline provided by the claimant during cross examination was not plausible since it relied upon him being late for his shift, something which he did not ordinarily do, and that he had sent the email to Mr Dutton in the 30 seconds it would have taken him to walk from his car to the office for the meeting. The meeting would have had to have concluded during the fourminutes between sending the first email attaching his grievance and the drafting and the sending of his second email attaching the same grievance but providing further wording, “…Please read the attachment letter in the email. Kind Regards Blazej.”

[43]My finding is further supported by the email which Mr Dutton sent to HR on 17 March 2020 at 6:46pm [P343] which said, “Sent to me minutes after he was dismissed”. Also, the claimant’s statement which was, on the whole set out chronologically, confirms: ”89. I left work on 17 March 2020 a bit dazed and I drove home. 90. Following the advice of my lawyer I had already written and sent a grievance to my employer about the safety conditions at work”.

[44]The claimant’s statement does not make clear when his grievance had been sent, but the claimant accepted in cross-examination that the reference in his grievance letter to, “we spoke earlier and I now wish to make a written grievances about two matters please” referred to the only meeting he had had with Mr Dutton on 17 March 2020. This could only have been the dismissal hearing as it was accepted by both parties that no other meetings took place that day, despite there being purported minutes for an earlier meeting.

[45]The grievance letter dated 17 March 2020 confirms that the claimant considered that the way they were asked to work was unsafe in the following two ways:a. “The content of the lorry trailer move about too much and there should be proper trailer to hold the content that stop this. This is not safe. And

b. We are asked to make lorry trailer exchange on a [layby] and not in a yard where there is no danger of being hit by passing traffic. This is very unsafe. I think that both of these are serious and looming danger that I no longer want to be expose to without changes at the work.”

[46]The grievance went on to cite complaints about Polish drivers being treated worse than British drivers but as the race discrimination complaint has been withdrawn, it is unnecessary to discuss this further.

[47]The claimant also said that he had told his immediate boss, Tomek, “didn’t he think the work was dangerous?” Although no further specifics were provided. He also gave evidence that he had spoken with other Polish drivers and they agreed that the work was dangerous although again, no further particulars had been provided about what was said, or to whom. During cross examination, the claimant for the first time gave evidence that he had spoken to Mr Dutton and raised health and safety concerns orally with him. Mr Dutton denied this and no specifics were given of matters alleged to have been raised, nor the dates of any such disclosures. I do not accept, therefore, that such matters concerning health and safety were discussed with Mr Dutton orally.

[48]Whilst the meeting was intended to be an investigation meeting, it was accepted by both parties that the claimant had been requested to sign a deductions form relating to the spillage on 11 March 2020. This form related to the driver’s weekly bonus being reduced due to the spillage. The claimant refused to sign this form and, from Mr Dutton’s evidence, would not engage in the investigation process.

[49]Mr Dutton’s evidence was that he had already arrived at the decision to dismiss the claimant prior to the meeting with him at 5pm on 17 March 2020 due to what he considered to be clear evidence that the claimant had failed to report two earlier spillages and had tampered with evidence in relation to another spillage which he had reported relating to the incident on 11 March 2020. Namely, the tacograph head and the dashcam footage. Mr Dutton’s evidence was that this was an extremely serious matter and the claimant’s behaviour and attitude during the meeting, together with his refusal to engage in any discussion, resulted in Mr Dutton confirming in the meeting that he had decided to terminate his employment with immediate effect as the respondent could not trust the claimant to report spillages in the future.

[50]There were no minutes for this meeting which Mr Dutton accepted was unusual in these circumstances despite the meeting lasting only approximately 10 minutes. I would have expected minutes to have been available particularly as Mr Bolton was there to take these minutes. However, I acknowledge that sometimes documents go missing and there did not appear to be much dispute between the parties over what was discussed in the meeting. The dispute related to the timings of the meeting and not its content.

[51]The claimant subsequently emailed Ms Bruce on 1 March 2020 [P345 – 346] to confirm whether he had in fact been dismissed. Mr Dutton confirmed in response to HR’s email to him [P347] what had happened during the meeting, namely that the claimant was asked to sign the deduction form for the spillage which he refused to do and that the meeting was not being rescheduled. It makes reference to the claimant’s attitude deteriorating and then being told that it had been decided to terminate his contract with immediate effect. It also states, “within minutes that email I forwarded to you and Robyn landed in my inbox, so he had obviously already got a plan together.”

[52]Confirmation of the claimant’s dismissal was sent by letter dated 23 March 2020 [P353]. The claimant states that this was sent on 25 March 2020. The letter confirmed that the claimant had been dismissed with immediate effect but that he would be paid one weeks’ salary in lieu of notice and receive his accrued but untaken holiday entitlement. The letter did not give the right to appeal.

[53]Ms Savry provided an initial response to the claimant’s grievance to HR on 6 April 2020 [P358]. A grievance outcome letter was then sent to the claimant on 16 April 2020 [P361 – 363] which was received by the claimant on 23 April 2020. The outcome letter went into some detail concerning the claimant’s allegations.

[54]The respondent had not followed its own grievance procedure in respect of the claimant’s grievance since he was not invited to a grievance hearing. He was, however, given the right to appeal against the grievance outcome. The claimant did not appeal and confirmed this in an undated letter [P374].

[55]The dismissal also did not follow the respondent’s own disciplinary procedure nor the ACAS code of practice. Submissions

[56]Both parties addressed me orally on the case and the Claimant provided written submissions which were sent the following morning.

[57]In brief, the Respondent contended that the Claimant had not put a valid claim under section 100(1)(d) ERA since he had not said that he had left work or refuse to return to work when he was dismissed. Therefore, his only possible claim was under section 100(1)(c) ERA that he had raised health and safety concerns that he had reasonably believed were harmful and had been dismissed for that reason. However this claim should fail since he had not proved that the health and safety concerns had been raised prior to his dismissal. Importantly, the claimant had only raised in cross-examination his assertion that he had previously told Mr Dutton verbally about his concerns regarding health and safety although it was still not known what was said and when. The claimant’s case therefore fell at the first hurdle. Not only had the claimant not proved his case on automatic unfair dismissal, the respondent had clearly demonstrated genuine reasons for concern and therefore reasons for his dismissal.

[58]The Claimant stated that section 100 provides protection to an employee, such that he is automatically unfairly dismissed if the reason, or principal reason, for the dismissal is that he brought to the employer's attention by reasonable means circumstances connected with his work which he reasonably believed was harmful, or potentially harmful to health and safety. The claimant was claiming automatic unfair dismissal under both s100(1)(c) and (d) of the ERA. He had confirmed that he no longer wanted to be exposed to a serious and looming danger without changes at work and had raised what he reasonably believed to be concerns over health and safety. The claimant was dismissed on the spot moments after Mr Dutton saw the claimant’s grievance. No procedures were followed and there were many basic defects in the process. As this is an automatic unfair dismissal case, the reasonableness of the decision was not an issue.

[59]I was referred to two authorities by the claimant. Namely, it is the claimant’s belief that counts and not the respondent’s opinion about the serious and imminent danger from Oudahar v Esporta Group Ltd

[2011] ICR 1406

. And that potential danger is not imminent danger – ABC News Intercontinental inc v Gizbert

UKEAT/0160/06/DM

. Law

[60]I had regard to the following sections of the ERA:

[61]Section 94 ERA: “The right(1) An employee has the right not to be unfairly dismissed by his employer.

(2) Subsection (1) has effect subject to the following provisions of this Part (in particular sections 108 to 110) and to the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (in particular sections 237 to 239).

[62]Section 100 ERA: “Health and safety cases (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—… (c) being an employee at a place where— (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work…”

[63]Section 108 ERA:

[64]“Exclusion of right “108 Qualifying period of employment (1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination… (3) Subsection (1) does not apply if—… (c) subsection (1) of section 100 (read with subsections (2) and (3) of that section) applies.”

Conclusion

[65]I had to consider whether the claimant had proved the reason or principal reason for this dismissal was either that he brought to his employer’s attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety (section 100(1)(c)) or whether, in circumstances of danger which the employee reasonably believed to be serious and imminent which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work (section 100(1)(d)).

[66]In light of my findings of fact, I do not accept that the reason for the claimant’s dismissal, or the principal reason, was in any way due to the health and safety concerns raised by him in a grievance on 17 March 2020. I do not accept that he raised health and safety issues orally prior to this date either to his colleagues or to Mr Dutton.

[67]I am satisfied that Mr Dutton had not received the claimant’s grievance [P344] prior to the meeting of 17 March 2020, nor had the claimant raised any health and safety concerns with him prior to his dismissal.

[68]I am satisfied that the grievance letter was emailed after the claimant had been dismissed and therefore cannot have formed the basis for that decision. Whilst the grievance had clearly been drafted prior to his dismissal, I do not believe that it had been sent.

[69]Further, I am satisfied that the reason for the claimant’s dismissal was his conduct related to the spillages that had occurred whilst he was driving vehicles and his failure to report two of these in accordance with the respondent’s procedures, together with the damaged tachograph and deleted dashcam files.

[70]The respondent failed to follow a fair procedure in respect of the claimant’s dismissal and certainly did not follow the ACAS code of practice. However, that in itself does not affect my decision, since in order to succeed, the claimant must prove the reason for his dismissal or principal reason is as set out in sections 100(1)(c) and (d) ERA. He has failed to do so.

[71]In light of this, it is unnecessary to deal with remedy and the case is dismissed.

[1]By email dated 30 May 2022, the claimant made an application for reconsideration of the Judgment dated 28 January 2022 which was sent to the parties on 18 February 2022. The claimant had made an application for written reasons on 10 February 2022 which was not referred to me until 22 April 2022. Similarly, the application for reconsideration was not referred to me until 17 August 2022.

[2]I did not invite the respondent to respond before I considered my powers under rule 71(2) of the Employment Tribunals Rules of Procedure 2013.

[3]Rule 72(1) provides for preliminary consideration of an application for reconsideration without the need to hold a hearing.

[4]The application is to be rejected if it is considered that there is no reasonable prospect of the Judgment being varied or revoked. 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 3303594/2020

[5]The basis of the reconsideration application is the interests of justice.

[6]The claimant’s application makes a number of assertions challenging my findings of fact based on the evidence adduced during the course of the hearing. In particular, I made findings relating to the investigatory meeting notes, for a meeting which had not taken place, within the Judgment.

[7]I made findings of fact based upon the evidence as presented and applied the law to those findings in my conclusions.

[8]In the circumstances the application for a reconsideration of the judgment is rejected on the basis that there is no reasonable prospect of it being varied or revoked.

[9]The application for reconsideration is therefore refused

[1]This case was heard before me on 26 to 28 January 2022. Having given oral Judgement in the case, written reasons were provided on 11 May 2022 following a request by the claimant.

[2]The respondent made an application for costs on 18 March 2022, which, unfortunately, along with the claimant’s request for written reasons were not forwarded to me until some months later.

[3]The claimant also made an application under rule 71 for reconsideration of the Judgment, which, again was not referred to me for some time. The reconsideration application was considered prior to the costs application, in order to provide the claimant with an opportunity to comment on the costs application. The claimant’s response was received on 13 June 2022 and the respondent made further comments on the claimant’s response on 27 June 2022.

[4]The parties were given the opportunity to request a hearing to consider the cost application but both parties appeared content for me to consider it on the basis of their written submissions, together with supporting documents. I had regard to these submissions and documents before coming to my decision. Background

[5]The claimant originally brought claims for automatic unfair dismissal and race discrimination against the respondent and another named individual. The claimant withdrew all claims against the named individual and the race discrimination complaints by email dated 15 December 2021 and these were dismissed on 12 January 2022.

[6]The respondent’s cost application related to costs incurred following withdrawal of the race discrimination complaints i.e. from 16 December 2021 onwards. The respondent’s application for costs

[7]The application for costs relied upon the following grounds:a. the claimant had acted unreasonably in bringing proceedings;

b. the claimant acted unreasonably in continuing with his claim (ie the way the proceedings were conducted); and

c. the claimant brought claims that had no reasonable prospects of success.

[8]The respondent did not distinguish between the separate grounds relied upon, since they were closely linked to each other. The respondent’s application for costs

[9]In brief, the respondent’s contentions were that the claimant had been made aware of the weaknesses in his case, by various emails/ letters sent to his representative. The claimant had been “knowingly untruthful” in the case he put forward and was not just mistaken. It ought to have been clear that the claimant had not raised health and safety concerns before his dismissal. It was therefore unreasonable behaviour of a kind to justify an award of costs. Even if untruthfulness was not apparent to his representative, it must still have been clear that the dismissing officer had not known about the claimant’s grievance before he dismissed him. Therefore, the claimant, having had the benefit of legal advice, should have known that the claim had no reasonable prospects of success. The claimant’s opposition to the costs application

[10]The claimant’s response was that the claimant believed, and believes, that the respondent’s working practices are unsafe. The claimant had twice sent his grievance on the day of his dismissal raising concerns about health and safety, and on the balance of probability, the claimant had not convinced the Judge that his dismissal was automatically unfair. This did not justify finding unreasonable conduct. The claimant denied knowingly lying. There were issues concerning the respondent forging documents, namely notes of an investigation meeting which had not taken place and training records for the claimant, which were reasonably challenged by the claimant. Costs in the Employment Tribunal differ from those in the civil court system and do not follow the event. The claimant had acted reasonably in engaging in settlement discussions with the respondent. The respondent had not made an application to strike out the claim on the basis that it had no reasonable prospects of success nor did it make an application for a deposit order. The threshold had not, therefore, been met and the application should be refused. The claimant’s ability to pay

[11]The claimant provided information in its submissions about the claimant’s finances, which showed that he had approximately £500 unallocated earnings per month. Whilst it was said that he did not have savings and was in debt to family members, there was no evidence provided in respect of this. I note that the claimant had paid his own legal expenses by instalments. Law

[12]The relevant parts of Rule 76 provide: 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) have been conducted; or (b) any claim or response had no reasonable prospect of success.

[13]The word “may” confirms that making a costs order is discretionary. However, the tribunal shall consider exercising that discretion in certain circumstances. The circumstances are often referred to as the threshold test or the gateway.

[14]The threshold test is met in a number of circumstances which include: if either a party, or a party’s representative, acts unreasonably in bringing or conducting proceedings (rule 76(1)(a)) and if the claim had no reasonable prospect of success (rule 76(1)(b).

[15]Once the threshold test has been met, the tribunal must consider the exercise of its discretion. The exercise of the discretion can include the following: should costs be awarded at all; should the costs be awarded for a period; should the costs be limited to a percentage; and should the costs be capped. Any order can be tailored to suit the circumstances.

[16]In exercising its discretion, the tribunal should have regard to all of the relevant circumstances. It is not possible to produce a definitive list of the matters the tribunal should take into account.

[17]I should be cautious about the citation of authorities on costs, although recognise that broad principles can be taken from relevant authorities.

[18]I should not adopt an over analytical approach to the exercise of this broad discretion. The vital point is to look at the whole picture and ask whether there has been unreasonable conduct in the bringing and conducting of the case. In so doing, I should consider what was unreasonable about the conduct and what effect it had. In Yerrakalva v Barnsley MBC

[2012] ICR 420

LJ Mummery said: “39. I begin with some words of caution, first about the citation and value of authorities on costs questions and, secondly, about the dangers of adopting an over-analytical approach to the exercise of a broad discretion.40. The actual words of Rule 40 are clear enough to be applied without the need to add layers of interpretation, which may themselves be open to differing interpretations. Unfortunately, the leading judgment in McPherson delivered by me has created some confusion in the ET, EAT and in this court. I say "unfortunately" because it was never my intention to re-write the rule, or to add a gloss to it, either by disregarding questions of causation or by requiring the ET to dissect a case in detail and compartmentalise the relevant conduct under separate headings, such as "nature" "gravity" and "effect." Perhaps I should have said less and simply kept to the actual words of the rule.”

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 Mc Pherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET 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.”

[19]It is always the case that costs are compensatory; they are never punitive.

[20]When considering whether to award costs because of a party’s conduct in bringing or pursuing a case, the type of conduct which is considered unreasonable will depend on the facts of the case. This is particularly important when considering a case which is subsequently held to have lacked merit. In general, having regard to Cartiers Superfoods Ltd v Laws

[1978] IRLR 315

it is at least arguable that in order to substantiate an allegation of unreasonable behaviour, it is necessary to look and see what that party knew or ought to have known if it had gone about the matter sensibly.

[21]I note, as a general principle, that I should approach with caution the question of what a party should be taken to have known at a particular point in time, otherwise parties could end up being penalised for not assessing the case at the outset in the same way as a Tribunal may do following the hearing of evidence. I had regard to the comments of Sir Hugh Griffiths in ET Marler v Robertson

1974 ICR 72

. “Ordinary experience of life frequently teaches us that that which is plain for all to see once the dust of battle has subsided was far from clear to the combatants once they took up arms.”

[22]I can consider how a party has pursued a matter. I note the following from Justice Lindsay in Beynon v Scadden

[1999] IRLR 700

, EAT: “A party who, despite having had an apparently conclusive opposition to his case made plain to him, persists with the case down to the hearing in the "Micawberish" hope that something might turn up and yet who does not even take such steps open to him to see whether anything is likely to turn up, runs a risk, when nothing does turn up, that he will be regarded as having been at least unreasonable in the conduct of his litigation.”

[23]When considering whether a party should reasonably have realised there was conclusive opposition to that party's case, I should consider if there were clear statements setting out that opposition. Those statements may appear in the response or claim form, correspondence, and cost warning letters.

[24]Whilst deposit orders operate as a warning to a party that a particular allegation or argument may prove to be unsustainable, and failure to establish the allegation or argument engages rule 37(5)(a) from which unreasonable conduct may be found, I note that there is no requirement to apply for a deposit order.

[25]Where evidence turns out to be false, it may be appropriate to consider whether the evidence was advanced dishonestly, particularly if it concerns a central allegation. However, a lie, even about an essential allegation, will not necessarily lead to an award of costs.

[26]Rule 84 expressly provides that the tribunal may have regard to a paying party's ability to pay. It states: “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 (or, where a wasted costs order is made, the representative's) ability to pay.”

[27]I am not obliged to restrict the order to one the paying party could pay. In Arrowsmith v Nottingham Trent University

2012 ICR 159

at paragraph 37 Lord Justice Reimer said the following. “…The fact that her ability to pay was so limited did not, however, require the ET to assess a sum that was confined to an amount that she could pay. Her circumstances may well improve and no doubt she hopes that they will.”

[28]In Vaughan v London Borough of Lewisham UKEAT 0533/12 the EAT also reiterated a Tribunal is not obliged to have regard to the ability to pay at all.

[29]It may be desirable to consider means, and I should give reasons for why I have, or have not, taken means into account.

Conclusion

[30]It was apparent that the claimant had withdrawn his discrimination complaints at a relatively early stage of the proceedings. The respondent, however, did not seek an award of costs for the period prior to this withdrawal.

[31]I had to firstly consider whether any of the grounds relied on met the threshold.

[32]Firstly, the respondent alleges that the claimant acted unreasonably in bringing his proceedings. This relies on a finding that the claim for automatic unfair dismissal had no reasonable prospects of success. Secondly, it was alleged that the claimant was unreasonable in continuing with those proceedings. Finally, the respondent contended that the claim had no reasonable prospects of success.

[33]I am specifically looking at the costs in relation to the automatic unfair dismissal claim pursued after the withdrawal of the claimant’s discrimination complaints. In this case, I am satisfied that the threshold to consider exercising the discretion has been met.

[34]In order for the claimant’s automatic unfair dismissal claim to succeed, he had to show that he had brought to his employer’s attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety. I consider that the claimant should have been aware at the time of bringing his proceedings, and at the time that they were continued following the withdrawal of the discrimination claim, that he would be unable to prove that these concerns had been raised to his employer before the decision to dismiss had been taken. This was an essential element of his claim for automatic unfair dismissal since he had insufficient service to bring a general unfair dismissal complaint.

[35]I find that the claimant was both unreasonable in continuing with his proceedings from 16 December 2021 onwards but also that his claims had no reasonable prospects of success both when they were presented, but also at the time that they were continued on 16 December 2021.

[36]I understand that the claimant still contends that the respondent has unsafe working practices, but in order to bring the only claim before me, he would have had to raise those concerns with his employer, which he ought to have known that he had not done prior to his dismissal.

[37]Having found that the gateway threshold has been met, I then must consider whether to exercise my discretion to award costs against the claimant in this case. Even when the threshold has been met, I may still decline to order costs if I consider that appropriate in all of the circumstances.

[38]The costs sought by the respondent, amount to £12,034.34 plus VAT to the date of its application.

[39]The starting point is that costs do not follow the event in the tribunal claim. Normally, no costs are payable. When the threshold has been met, it is appropriate to consider whether the entirety of the cost should be paid or whether part of the costs, or whether they should be capped.

[40]I take into account that the only claim being brought was automatic unfair dismissal, and the proceedings would not have continued had that claim been withdrawn at the same time that the race discrimination complaints had been withdrawn and therefore consider that the respondent has been put to considerable expense in defending those proceedings.

[41]The respondent had sent detailed correspondence to the claimant about the weaknesses in his claim, and had offered to settle the claim prior to the hearing which would have avoided the necessity of defending the claim.

[42]I do not accept that the respondent’s failure to apply for a strike out or deposit order affects my decision to award costs against the claimant.

[43]I consider that it is appropriate to exercise my discretion to award a contribution towards the respondent’s costs in this case. In coming to my decision, I have applied a broad brush approach when considering the costs claimed by the respondent, rather than going line by line through the breakdown provided. For example, I do not consider that costs should include representation by a solicitor and counsel at the hearing. I have taken into account the relatively limited means of the claimant but consider that his means do not prevent a costs order being made, however do not accept that it should be the full costs, as set out in the respondent’s application.

[44]In light of this, I consider that an appropriate sum to award is £5,000 as a contribution towards the respondent’s costs. I therefore award the respondent costs of £5,000.