Mr E C Oise v Spring And Co Solicitors Ltd: 3305068/2020
EMPLOYMENT TRIBUNALS
Case No 3305068/2020
Between
Mr E C OiseClaimantSpring And Co Solicitors LtdRespondentDate 20 September 2021
JUDGMENT
The complaint of disability discrimination is struck out.
REASONS
Claimant has failed to pay a deposit. The claim for unfair dismissal proceeds. JUDGMENT (CORRECTED) Judgment in the following terms was given to the parties on the day of hearing. The claim for unfair dismissal is well founded.[2]The Respondent is to pay the Claimant £1,177.51. This award is made up as follows; basic award £1,535.88 reduced by 50% by Claimant’s conduct (£767.94), Compensatory award £511.96 reduced by 50% by Claimant’s conduct (£255.98) and a 15% ACAS uplift (£153.59). The recoupment provisions do not apply.[1]At the conclusion of submissions, the Tribunal delivered its judgment. Ms L Millen, representing the Claimant, asked for written reasons.[2]By a claim form presented to the Tribunal on 27 May 2020, the Claimant made various claims including a claim of unfair dismissal. In a Judgment of 27 April 2021 [67] Judge I Manley ruled that the sole issue that could continue for consideration by the Tribunal was the claim of unfair dismissal. Judge I Manley also found that the Claimant had the necessary two years continuous service for the claim to continue.[3]The Respondent presented its response to the claim on 10 September 2020.
The issues
[4]The parties produced an agreed list of issues at the hearing, these were appended to the Case Management Orders of 27 April 2021: 1. ‘Was the Claimant:(a) Instructed by Ms Aghaeze to chase Client A on a monthly basis for updates in respect of the status of his case in mid-2019?(b) Informed by Ms Aghaeze at a staff meeting on 15 December 2019 about an impeding Lexcel audit?(c) Entitled to send the e-mails to Client A dated 16 December and 23 December 2019 (‘the Letters’) without Ms Aghaeze’s authorisation?(d) Reasonably entitled to refuse to apologise to Client A and retract the Letters as instructed by Ms Aghaeze? 2. Did the Claimant’s conduct identified above, namely: (a) The sending of the Letters without Ms Aghaeze’s authorisation, and (b) The refusal to apologise and retract the Letters as instructed – Amount to gross misconduct? 3. Was the reason for dismissal the Claimant’s gross conduct? 4. In respect of the disciplinary proceedings against the Claimant which took place in January 2020: (a) Was there an investigation into the relevant allegations? (b) Who carried out the investigation? (c) Was the Claimant informed of the investigation? (d) Was the Claimant notified of the outcome of the investigation?(e) Did the Respondent carry out a reasonable investigation?(f) Should the Respondent have postponed the disciplinary hearing dated 10 January 2020 (‘the Disciplinary Hearing’) on the basis of information provided by the Claimant between 6-10 January 2020?(g) Who carried out the Disciplinary Hearing dated 10 January 2020?(h) Was the Claimant provided with relevant documentation prior to the Disciplinary Hearing?(i) Were the allegations clearly stated?(j) Was the Claimant allowed to state his case?(k) Was the Disciplinary Hearing carried out fairly?(l) Who made the decision to dismiss?(m) Was the Claimant offered the opportunity to appeal?(n) Who would have chaired the appeal hearing if one had been conducted?[5]Was the decision to dismiss substantially fair?’ The evidence 5. The Respondent called Ms P Aghaeze, who is a solicitor and Director of Respondent company. She had conducted the investigation into the Claimant’s conduct and presided over the disciplinary hearing. Following this she dismissed the Claimant for gross misconduct. The Claimant did not lodge an appeal against this decision. The Respondent company is a small business run and managed by Ms Aghaeze, at the time of his employment, aside for the Claimant there was one other employee.
The evidence
[6]The claimant gave evidence and was cross examined.[7]In addition to the oral evidence, the parties adduced a bundle of documents comprising of 274 pages. The statements of both witnesses had been provided in addition to this bundle. During the course of the hearing other documents were added to the bundle(i) a copy of a redacted CFA utilised by the Respondent (labelled Annex A),(ii) an amended Claimant’s Schedule of loss [inserted into the bundle at 39A],(iii) the agreed list of issues and(iv) closing written submissions from both parties. I am grateful to both representatives for the presentation of written submissions which clearly set out the law to be applied.
Findings of fact
[8]The Claimant worked for the Respondent from the 3 July 2015 until his dismissal on the 10 January 2021. He worked as an assistant solicitor under the supervision of Ms P Aghaeze.[9]The issue that led to dismissal arose over two clients of the Respondent (Clients A and B) who had been involved in a Road Traffic Accident (RTA). They were not initially the Claimant’s clients to look after, they were handed over to him when another member of staff left the employment of the Respondent. These Clients had been introduced to the firm by a third party who was known to Ms P Aghaeze. When the Clients were taken on by the firm some documents that would normally be gathered and placed on file were not collected. However, it became apparent that Client A’s insurance company were investigating the RTA and it was possible that the Respondent would not be in a position to represent both Clients A and B depending upon the outcome of the investigation, the insurers were investigating whether Client A was at fault. All parties (i.e. the Respondent and Clients A and B) agreed that the matter should be put on hold pending the outcome of the investigation. I find the Claimant was told to call the Clients on a monthly basis to check for an update on the insurance investigation. The file note of 12 June 2019 [147] refers to the Claimant calling the Clients on a monthly basis to check for updates. I find that all parties agreed the matter was on hold but that the Claimant had been instructed to seek updates.[10]In December 2019 the Claimant became aware there was to be a possible audit of the Respondent’s firm and in reviewing the file of Clients A and B he realised some of the usual identity and other documents were missing. As well as chasing for an update on the investigation he also sought copies of the missing documents.[11]On 16 December 2019 the Claimant emailed Client A seeking an update on the investigation and copies of the missing ID documents for the file [106]. Later the same day the Client spoke with the Claimant and was unhappy that he was being chased. During the course of this telephone call the Client made clear he no longer wanted the services of the Respondent. The Claimant followed this telephone call up with an email of 16 December sent at 17:52 [107]. He refers to being ‘shocked’ at the Client’s response to his requests and ends the email by stating unless there was a response within 3 days ‘we shall end the agreement without further reference to you.’ He did not discuss any of these matters with his supervisor Ms P Aghaeze.[12]The Claimant did not take the step to terminate the contract as threatened but on 23 December 2019 wrote to Client A [169] informing him of the terms of the Conditional Fee Agreement (CFA) he had signed and stated the Client had 14 days to comply with the requests made otherwise the agreement would end without further reference to the Client and he would be liable for costs.[13]Shortly after this letter the Client spoke to the third party who introduced the Clients to the firm to express his displeasure in the manner his case was being handled. This third party then spoke to Ms P Aghaeze to complain. No formal complaint was lodged. I find the third party was understandably upset that the Clients he had recommended were unhappy with the handling of their case. Ms P Aghaeze did not immediately act on this information / complaint. She indicated an issue/ complaint had arisen in an email to the Claimant on 23 December [171]. This email states the matter had been brought to her attention the ‘previous week’.[14]Ms P Aghaeze, who was out of the country but had access to the office files remotely, emailed the Claimant on 23 December [171] querying why she should have received this complaint and stated; ‘I believe I asked you to put this matter on hold…’ she also states that she hoped the letter of 16 December had not been sent to the clients and that any such letter ‘must be passed’ to her for approval to see if such action was warranted. I find Ms Aghaeze’s position was that the Claimant had exceeded the case management powers he held as an associate solicitor acting under her supervision.[15]The Claimant’s position is he only sought supervision on matters he did not know how to handle. The firm had a previous case which had a similar issue and he had asked Ms P Aghaeze what to do, she had informed him of what the Respondent’s refer to as a ‘cessation letter’ and this had been sent to that client. As this had been past practice the Claimant thought that this is the action he should take on the present file and he would not need to seek confirmation from his supervisor before sending such a letter.[16]The Claimant’s contract of employment [128] lists his key duties, these are broad in nature and include matters such as ‘file management.’ There is no direct suggestion that the Claimant has the ability to end the relationship of the firm with a client.[17]I find the Claimant had no intention of ending the relationship with the Clients. He was using these emails/ letters to try and force the Client into compliance. He did not action the threat of the 16 December to terminate the agreement in 3 days, but rather wrote again on 23 December and provided a further 14 days for compliance. However, although this was his intention the recipient of the letter may well have thought services from the Respondent were about to be terminated and that there would be cost implications.[18]I find the working arrangement to have been unspecified enough for confusion to have arisen. The Claimant had seen this type of letter sent before and so believed he would be authorised to send the same again. At the time the emails and letters were sent the Respondent had not made clear the position either in the contract of employment, company policy documents or orally since the Claimant had started his employment, that such a letter or step could only be taken upon authorisation. An extract of the ‘Respondent’s Office Manual’ was provided [166], paragraph 8.7 of the same covers ‘Ceasing to act’, this states ‘When a fee earner is of the opinion that the practice should terminate instructions, they must discuss the issue with their supervisor…’ The letter sent threatens such a termination, however, I find it was not the Claimant’s intention to ‘terminate instructions’. I accept the Claimant’s evidence that at the time of sending the email of 16 December and letter of 23 December he believed he was doing so correctly and not breaching / overstepping his role as an associate solicitor.[19]However, once the Claimant’s actions had become clear the Respondent’s position and instructions were equally clear. The chain of emails [171ff] of 23 December make the Respondent’s position clear. The Claimant was told to write to the Clients, retract the letter and to apologise. The Claimant replied setting out why he had taken the action he had. He requested the Respondent review the situation and that he will not write to the Clients until he heard from Ms P Aghaeze on how she intends to handle the complaint. The Respondent again replied stating that the retraction and the apology must be made as the Claimant had no authorization to send the letter.[20]I find even if the Claimant believed he had authorisation to send the letter, which has been referred to as a letter of cessation, he was aware from 23 December that he did not in fact have such authority, he needed to have discussed this action with his supervisor.[21]The Claimant despite the position being clarified responded stating he would not obey the instruction given as he had, in his opinion, not done anything wrong.[22]The Respondent replied stating that; ‘I have not asked you to agree or disagree with me’ [175] but asked the Claimant to obey the instruction given.[23]The Claimant then replied and states inter alia that; [176] ‘I have done nothing wrong …… ‘[24]In summary I find that Ms P Aghaeze had reviewed the file of Clients A and B and discovered the emails and correspondence that had been sent. She informed the Claimant he had exceeded his authority and gave him an instruction to retract the letter and to apologise to the Clients for sending the same. He refused on more than one occasion.[25]On 3 January the Claimant came into work but the Respondent was not present. At 14:58 he emailed the Respondent [177]. He ends by stating he will not return to work until he receives a response on how the Respondent wishes to proceed with the matter. Although he mentions he is stressed and struggling to focus on work. I find the reason he was refusing to come into work was the uncertainty surrounding the disciplinary process [177] ‘In the meantime, as it is not clear whether I am on suspension or waiting for the disciplinary process to begin, I have decided that I will take time off work until I am able to have a meeting with you to discuss this matter further.’[26]The Respondent’s response to this email was that this was unauthorised absence and the Claimant would not be paid [178]. On 3 January 2020 the Respondent invited the Claimant to a disciplinary hearing on 10 January 2020 at 11;30 [180].[27]The Claimant replied stating he was to see his General Practitioner and was not yet in a position to confirm his attendance. [194][28]After seeing his GP on 7 January 2020 he provided a fit note for the period 2 January 2020 to 16 January 2020 [196]. This was sent to Respondent on 7 January 2020. The Respondent refused to delay the hearing scheduled for 10 January stating; [197] ‘I do not consider that you have a genuine illness …’.[29]The disciplinary hearing proceeded in the Claimant’s absence and he was dismissed for gross misconduct. This was conveyed in an email of 10 January [203] and a letter of 17 January 2020 followed this [206].[30]The Claimant was dismissed for gross misconduct on two grounds(i) writing and sending the ‘cessation letter’ and(ii) ‘conduct’ i.e. serious insubordination/ refusal to carry out a reasonable management instruction. Both of which come under possible grounds of gross misconduct as set out in Respondent’s ‘Code of Conduct and Disciplinary and Dismissal procedure.’ [185][31]Having received notification of his dismissal the Claimant chose not to appeal. Ms Aghaeze had conducted the investigation, chaired the disciplinary hearing and would have chaired the appeal due to the size of the Respondent’s business. The Claimant saw no point in appealing and instead brought the claim to the Tribunal. Submissions[32]I have taken into account the detailed oral and written submissions made by the Representatives. I do not propose to repeat their submissions herein having regard to rule 62(5) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended. I took into account the authorities I was referred to, as well as the ACAS Code of Practice and Guide on grievance and discipline.
The law
[33]Section 98(1) Employment Rights Act 1996 (“ERA”), provides that it is for the employer to show what was the reason for dismissing the employee. Dismissal on grounds of conduct is a potentially fair reason, s.98(2)(b). Whether the dismissal is fair or unfair having regard to the reason shown by the employer, the tribunal must have regard to the provisions of s.98(4) which provides: “Where the employer has fulfilled the requirements of subsection (1), and the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -(a) depends on whether in the circumstances (including the size and administrative resources of the employees undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case."[34]In the case of British Homes Stores v Burchell [1980] ICR 303, the EAT’s judgment was approved in the Court of Appeal case of Weddel & Co Ltd v Tepper [1980] ICR 286. The following has to be established: First, whether the respondent had a genuine belief that the misconduct that each employee was alleged to have committed had occurred and had been perpetrated by that employee, Second whether that genuine belief was based on reasonable grounds, Third, whether a reasonable investigation had been carried out,[35]Finally, in the event that the above are established, was the decision to dismiss reasonable in all the circumstances of the case. Was the decision to dismiss within the band of reasonable responses?[36]The charge against the employee must be precisely framed Strouthos v London Underground [2004] IRLR 636.[37]Even if gross misconduct is found, summary dismissal does not automatically follow. The employer must consider the question of what is a reasonable sanction in the circumstances Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854.[38]I must consider whether the employer had acted in a manner a reasonable employer might have acted, Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT. The assessment of reasonableness under section 98(4) is thus a matter in respect of which there is no formal burden of proof. It is a matter of assessment for me.[39]It is not the role of the Tribunal to put itself in the position of the reasonable employer, Sheffield Health and Social Care NHS Trust v Crabtree UKEAT/0331/09/ZT, and London Ambulance Service NHS Trust v Small 2009 EWCA Civ 220. In the Crabtree case, His Honour Judge Peter Clark, held that the question "Did the employer have a genuine belief in the misconduct alleged?” goes to the reason for the dismissal and that the burden of showing a potentially fair reason rests with the employer. Reasonable grounds for the belief based on a reasonable investigation, go to the question of reasonableness under s.98(4) ERA 1996. See also Secretary of State v Lown [2016] IRLR 22, a judgment of the EAT.[40]The range of reasonable responses test applies to the investigation as it does to the decision to dismiss for misconduct, Sainsbury's supermarket Ltd v Hitt [2003] ICR 111 CA.[41]In the case of Taylor v OCS Group Ltd [2006] ICR 1602 CA, it was held that what matters is not whether the appeal was by way of a rehearing or review but whether the disciplinary process was overall fair.[42]The seriousness of the conduct is a matter for the employer, Tayeh v Barchester Healthcare Ltd [2013] IRLR 387 CA.[43]The Court of Appeal acknowledged that employment tribunals are entitled to find whether dismissal was outside the range of reasonable responses without being accused of placing itself in the position of being the reasonable employer. In Bowater-v-Northwest London Hospitals NHS Trust [2011] IRLR 331, a case where the claimant, a senior staff nurse who assisted in restraining a patient who was in an epileptic seizure by sitting astride him to enable the doctor to administer an injection, had said, “It’s been a few months since I have been in this position with a man underneath me” was the subject of disciplinary proceedings six weeks later. She was dismissed for, firstly, using an inappropriate and unacceptable method or restraint and, secondly, the comment made. The employment tribunal found by a majority that her dismissal was unfair. The EAT disagreed. The Court of Appeal, overturned the EAT judgment, see the judgment of Stanley Burnton LJ, paragraph 13. See also Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677 in which the Court of Appeal held that the tribunal is required to consider section 98(4) ERA 1996, when considering the fairness of the dismissal.[44]The level of inquiry the employer is required to conduct into the employee’s alleged misconduct will depend on the particular circumstances including the nature and gravity of the case, the state of the evidence and the potential consequences of an adverse finding to the employee. “At the one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end, so the amount of inquiry and investigation which may be required, including the questioning of the employee, is likely to increase.”, Wood J, President of the EAT, ILEA v Gravett [1988] IRLR 497.[45]In the case of Thompson v Alloa Motor Co Ltd [1983] IRLR 403, the EAT, Lord McDonald, held that conduct within the meaning of section 98(2)b means “actings of such a nature, whether done in the course of employment or outwith it, that reflect in some way upon the employeremployee relationship”, paragraph 5. Conclusions Unfair dismissal
Conclusions
[46]In relation to what was the reason for the Claimant’s dismissal I find the Respondent dismissed the Claimant for two reasons(i) sending the ‘cessation letter’ to Client A without authority and(ii) refusing to obey the instruction to retract the letter and apologise for sending the same. For the reasons given above I found in favour of the Respondent on the second of these reasons. As this reason relates to the Claimant’s conduct it is a potentially fair reason for dismissal.[47]Applying the case of Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677 and section 98(4) ERA it would not have been fair to dismiss the Claimant for sending the ‘cessation’ letter to the Client. The policy/ working practices and instructions to the Claimant were vague enough that I find he could reasonably believe that he had authority to send this letter as a pressure tactic to obtain information from the Client. It is not a cessation letter as described by the Respondent but a threat of cessation. I accept that it was the firms practice to send such a letter to chase clients and put pressure upon them. The Respondent would have been aware of this, as she would also be aware that she had instructed the Claimant to send such a letter in a previous matter.[48]However, there are two grounds advanced for dismissal. It is sufficient if at least one of the grounds is established if it would justify dismissal independently of the other grounds Carlin v St Cuthbert’s Co-operative Association Ltd 1974 IRLR 188, NIRC. I do find that dismissal for refusal to carry out a reasonable management instruction is made out. Whilst other options may have been open to the Respondent I must not have a substitution mindset and must consider whether the action taken was reasonably open to her. It was made clear to the Claimant that, contrary to his belief, he did not have authority to send such a letter and this was a matter he needed to discuss with his supervisor. He was instructed to withdraw the same and apologise. He refused to do so on more than one occasion. Further, for understandable business reasons the Respondent was acting reasonably in protecting the firm and the relationship with the Client in asking the Claimant to retract the letter and apologise for any offence caused (however inadvertently or unintentionally). The Claimant repeatedly refused to carry out these reasonable management instructions.[49]The Respondent held a genuine belief in the Claimant’s misconduct. It is not in dispute he repeatedly refused the management order[50]That same belief was reasonably held by the Respondent, it had been made clear to the Claimant that he had no authority to send such a letter and it had to be retracted. There are obvious business reasons why an associate solicitor should follow the instructions of their supervisor. The Claimant refused this direction. The investigation[51]I do not find the investigation itself was deficient prior to the proposed disciplinary hearing. Ms P Aghaeze is a sole practitioner with two associates. She did not have a separate HR department. Given the size of the business I did not find the investigation prior to the disciplinary hearing deficient. She had read the file and understood what had happened. Ms Aghaeze then made clear the Claimant had no authority to send the letter and wanted a retract made and an apology sent. The Claimant had made his position clear that he would not do so and invited the Respondent to instigate the disciplinary process [176]. The investigation although brief uncovered all the salient facts.[52]However, I find the dismissal was procedurally unfair. The Respondent’s policy on disciplinary hearings gave scope for delay [189 – paragraph 3.10]. The Respondent had received a medical ‘fit note’ that the Claimant was unfit for work. To expect him to attend a disciplinary meeting and to find, in the face of medical evidence to the contrary, that he was not ill as claimed, the Respondent acted unreasonably. Further, given the seriousness of the consequences for any employee but particularly a solicitor of a potential finding of gross misconduct I find the decision to proceed in absence to be procedurally unfair.[53]I find had the Respondent delayed the disciplinary hearing the Claimant would nevertheless have been dismissed. In making this finding I bear in mind the points raised in the Claimant’s written submissions and at the hearing concerning the effect and impact of a finding of dismissal for gross misconduct on a solicitor. The Claimant had been given a clear instruction by his supervisor. He had been informed, contrary to his mistaken belief, he had no right/ authority to send the offending letter. He refused to follow these instructions, to retract the same and apologise to the Client.[54]This conduct undermines the relationship of trust and confidence and I find would have led to a dismissal on the grounds of gross misconduct at any delayed disciplinary hearing. I find had the Respondent acted reasonably the hearing would have been delayed by 2 weeks. The fit note indicated a return to work 2 weeks after 2 January 2020 i.e. approximately 16 January. The Claimant would need a short time to get ready for the disciplinary hearing and I find a further week would have been reasonable. Both parties wanted this matter addressed promptly for differing reasons. There would have been no reason to delay unduly. I find had the disciplinary hearing been delayed by 2 weeks until 24 January 2020 the Claimant would nevertheless have been dismissed on this date.[55]Was dismissal within the range of reasonable responses? I do not put myself in the place of the reasonable employer. I find an employer possessed with the same information that this employer had may conclude that by refusing to obey a direct management order the Claimant had engaged in unreasonable conduct. Dismissal was therefore within the range of reasonable responses and this would have been the outcome at he delayed disciplinary proceedings.[56]It follows from my conclusions that the claim for unfair dismissal is well founded.
Remedy
[57]Having made the above findings of fact I invited the parties to make any further submissions on the Claimant’s conduct and whether this should reduce the basic and/or compensatory award.[58]Having heard submissions I reduced both awards by 50%. The Claimant in refusing a direct management instruction contributed to his own dismissal by his conduct. I have reduced the percentage deduction due to the unclear working practices prior to the emails of 23 December 2020. I found these reductions under sections 122(2) and 123(6) of the ERA 1996 to be just and equitable. I have considered relevant factors in reducing both the basic and the compensatory award both prior to and during the disciplinary process. His conduct in refusing the direct management instruction affects his basic award and his conduct contributed to his compensatory reduction.[59]I also indicated to the parties that whilst I had found no fault with the investigation I had found the decision to proceed with the disciplinary hearing in the Claimant’s absence to be flawed. I therefore awarded a 15% uplift due to the failure to follow ACAS procedures properly, specifically paragraph 11. I find the meeting ought to have been delayed to allow the Claimant a reasonable time to prepare his case.[60]Given my factual findings the parties agreed the figures as set out in the Judgment recorded above.[61]Having made these findings the Respondent indicated they were seeking costs. No schedule had been served on the Tribunal. It was indicated one had been provided to the Claimant on the first day of the hearing. The Claimant accepted this had been served but had yet to address the same due to time. It was indicated the costs related to, inter alia, monies expended in defending the claims of sex and disability discrimination that had been excluded from consideration by Judge Manley. In transpired no order for costs had been sought at the time Judge I Manley ruled on these issues.[62]The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 state as follows: When a costs order or a preparation time order may or shall be made 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. (2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. (3) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal shall order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a) the claimant has expressed a wish to be reinstated or reengaged which has been communicated to the respondent not less than 7 days before the hearing; and (b) the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment. (4) A Tribunal may make a costs order of the kind described in rule 75(1)(b) where a party has paid a Tribunal fee in respect of a claim, employer’s contract claim or application and that claim, counterclaim or application is decided in whole, or in part, in favour of that party. (5) A Tribunal may make a costs order of the kind described in rule 75(1)(c) on the application of a party or the witness in question, or on its own initiative, where a witness has attended or has been ordered to attend to give oral evidence at a hearing. Procedure 77. A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.[63]I do not find that the Claimant acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting the proceedings. Whilst parts of the claim were excluded from consideration there was evidence before me that the Claimant had wished to pursue these claims (of sex and disability discrimination) but had missed deadlines and/ or payment by way of a deposit order in order to advance the claims. Further, the Claimant had not had a reasonable opportunity to make representations upon the same.[64]I made no order as to costs. Certificate of Correction: Under the provisions of Rule 69 of the Employment Tribunals’ Rules of Procedure 2013, the Judgment sent to the parties on 14 September 2022, is hereby corrected in that the name of the Claimant should be and is Mr EC Oise.
Remedy
[1]The Claimant’s application dated 27 September 2022 for reconsideration of the judgment dated 14 September 2022 (“the Judgment”) is refused. There are no reasonable prospects of the judgment being varied or revoked. The Judgment is confirmed.
Remedy
[1]By rule 70 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) the Employment Tribunal may reconsider a judgment where it is necessary in the interests of justice to do so. On reconsideration, the judgment may be confirmed, varied or revoked.[2]An application for reconsideration shall be presented in writing (and copied to all other parties) within 14 days of the date upon which the written record of the original decision was sent to the parties. This application is in in time.[3]Under Rule 70, a judgment will only be reconsidered where it is necessary in the interests of justice to do so. This allows an Employment Tribunal a broad discretion to determine whether reconsideration is appropriate in the circumstances. The discretion must be exercised judicially. This means having regard not only to the interests of the party seeking the reconsideration but also the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[4]The procedure upon a reconsideration application is for the Employment Judge that heard the case to consider the application and determine if there are reasonable prospects of the judgment being varied or revoked. This is a reviewing function in which the Judge must consider whether there is a reasonable prospect of the original decision being varied or revoked (rule 72). Reconsideration cannot be ordered simply because the applicant disagrees with the judgment. Case No.3305068/2020[5]If the Judge considers that there is no such reasonable prospect then the application shall be refused. Otherwise, the Judge shall send a notice to the parties setting a time limit for any response to the application by the other party and seeking the views of the parties on whether the application can be determined without a hearing (rule 72). My role, upon the considering of the application upon the papers initially, is therefore to operate as a filter to determine whether there is a reasonable prospect of the Judgment being varied or revoked were the matter to be the subject of a reconsideration hearing.[6]The Claimant’s application is no more than a disagreement with the factual findings of the Tribunal. The Claimant’s argument made at the hearing (and repeated in the application for reconsideration) that his refusal to recall a letter dated 23 December 2019 and apologise to the Client to whom the letter was sent, as he was instructed to do by his Supervisor, was not a fair reason for dismissal and should not be considered in attributing contributory fault in assessing remedy were fully considered. The Claimant did not dispute that he knew he had been both instructed to withdraw the offending letter and to apologise to the Client. In light of this knowledge he took the positive step to do neither, thereby refusing a direct management instruction. The application seeks to raise the issue of where the original complaint came from and various other factual disputes. Findings have been made on the factual scenario posed which I am satisfied were open to me on the evidence provided. Adequate reasons were given for rejecting the argument’s advanced by the Claimant, his attempt to reargue the same in the application for reconsideration do not, in my finding, lead to a reasonable prospect of success that the Judgment should be varied/ revoked.[7]I am satisfied that I applied the law correctly and gave full reasons for the decision I reached. In my judgment, there are no reasonable prospects of the Judgment being varied or revoked. It is not necessary in the interests of justice to reconsider the Judgment. Accordingly, the Claimant’s application for reconsideration fails and is dismissed.
The Law
[8]In the case of Vaughan v London Borough of Lewisham UKEAT/0533/12/SM, the Employment Appeal Tribunal held that there was no error of law when the employment tribunal in awarding costs took into account whether there was a reasonable prospect of the claimant being able, in due course, to return to well-paid employment and be in a position to pay costs. Also in that case it was held that the failure on behalf of the respondent to apply for a deposit order is not necessarily an acknowledgement that a claim has a reasonable prospect of success as there are a variety of reasons why such a course of action may not be adopted, such as additional costs involved in having the matter considered at a preliminary hearing and which may not deter the claimant.[9]The tribunal have to consider, once the claims have been brought, whether they were properly pursued, Npower Yorkshire Ltd v Daly UKEAT/0842/04.[10]Knox J, in Keskar v Governors of All Saints Church England School and Another [1991] ICR 493, page 500, paragraphs E-G, held, “The question whether a person against whom an order for costs is proposed to be made ought to have known that the claims he was making had no substance, is plainly something which is, at the lowest capable of being relevant, and we are quite satisfied from the decision itself, in the paragraph which I have read and need not repeat, that the industrial tribunal did have before it the relevant material, namely that there was virtually nothing to support the allegations that the applicant made, from which they drew the conclusion that he had acted unreasonably in bringing the complaint. That in our view, does involve an assessment of the reasonableness of bringing the proceedings, in the light of the non-existence of any significant material in support of them, and to that extent there is necessarily involved a consideration of the question whether the applicant ought to have known that there was virtually nothing to support his allegations.”[11]I have also taken into account the cases of AQ Ltd v Holden [2012] IRLR 648, a judgment of the Employment Appeal Tribunal, E.T Marler v Robertson [19974] ICR 72, a judgment of the National Industrial Relations Court, and Oni v Unison UKEAT/0370/14/LA.[12]In Marler, it was held by Sir Hugh Griffiths under the old “frivolous or vexatious” costs requirements that “If the employee knows that there is no substance in his claim and that it is bound to fail, or if the claim is on the face of it so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of the procedure of the tribunal to pursue it. If an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously, and likewise abuses the procedure. In such cases the tribunal may and doubtless usually will award costs against the employee.”, page 76 D-F.[13]In the Oni case, Simler J, President, re-stated the principles, namely that the tribunal has a wide discretion in deciding whether to award costs. It is a twostage process. The first being, to determine whether the paying party comes within one or more of the parameters set out in rule 76. The second, is if satisfied that one or more of the requirements have been met, whether to make the award of costs. However, costs had to be proportionate and not punitive and reasons must be given.[14]In Arrowsmith v Nottingham Trent University [2011] EWCA Civ 797, a case where the claimant was ordered to pay costs of £3,000 because she had made a case dependent on advancing assertions that were untrue. The Court of Appeal held that under rule 41(2) the tribunal was not obliged to take her means into account although it had done so. The fact that her ability to pay was limited, in that she was unemployed and no longer in receipt of statutory maternity pay, did not require the tribunal to assess a sum limited to an amount she could pay. The amount awarded was properly within the tribunal’s discretion.[15]In relation to the exercise of the tribunal’s discretion whether to take into account the paying party’s ability to pay, under the old rules, HHJ Richardson, in the case of Jilley v Birmingham & Solihull Mental Health NHS Trust (EAT/584/06), held: “The first question is whether to take ability to pay into account. The tribunal has no absolute duty to do so. As we have seen, if it does not do so, the County Court may do so at a later stage. In many cases it will be desirable to take means into account before making an order; ability to pay may affect the exercise of an overall discretion, and this course will encourage finality and may avoid lengthy enforcement proceedings. But there may be cases where for good reason ability to pay should not be taken into account: for example, if the paying party has not attended or has given unsatisfactory evidence about means.” “If a tribunal decides not to do so, it should say why. If it decides to take into account ability to pay, it should set out its findings about ability to pay, say what impact this has had on its decision whether to award costs or on the amount of costs, and explain why. Lengthy reasons are not required. A succinct statement of how the tribunal has dealt with the matter and why it has done so is generally essential.”
Conclusion
[16]I have considered the cases of Oni, Keskar, and Marler. I acknowledge that costs in an employment tribunal case do not follow the event and that I have a wide discretion in relation to costs. Caselaw set out above considers and analyses the factors for consideration.[17]The claimant’s application is on two bases, firstly, that it; ‘is based on the unreasonable and vexatious act by the Respondent during litigation.’ It was submitted the Respondent had provided false and misleading information to the Tribunal. Secondly, an allegation of the falsification of documents has also been made and that the Respondent breached confidentiality by disclosing documents from the claimant’s personal injury file.[18]The Judgment delivered on the day of hearing and promulgated shortly thereafter made clear why the claim of unfair dismissal was upheld: ‘52. However, I find the dismissal was procedurally unfair. The Respondent’s policy on disciplinary hearings gave scope for delay [189 – paragraph 3.10]. The Respondent had received a medical ‘fit note’ that the Claimant was unfit for work. To expect him to attend a disciplinary meeting and to find, in the face of medical evidence to the contrary, that he was not ill as claimed, the Respondent acted unreasonably. Further, given the seriousness of the consequences for any employee but particularly a solicitor of a potential finding of gross misconduct I find the decision to proceed in absence to be procedurally unfair. 53. I find had the Respondent delayed the disciplinary hearing the Claimant would nevertheless have been dismissed…..’[19]As set out in paragraph 5 above, Rule 76 states that a party, or their representative, must have ‘acted vexatiously, abusively, disruptively or otherwise unreasonably’[20]As emphasised above the power to award costs is discretionary. The points argued by the claimant are in the main the same issues raised at the hearing. No application was made for documents to be excluded on the basis of privilege or falsification. I found the claimant was dismissed for gross misconduct. I did not find the Respondent had misled the Tribunal or had provided falsified evidence as claimed. The same claims were advanced to the SRA and their email to the Respondent of 30 September 2022 concluded. ‘Our investigations and outcomes are evidence based. In our careful consideration of the matter, we have not identified any corroborating evidence which supports the allegations. The facts present Ms Jabin's word against your word. This is not sufficient evidence to establish that our rules have been breached. Therefore we are unable to take any further action and are closing our investigation.’[21]I find the Respondent did not act vexatiously, abusively, disruptively or in any other unreasonable manner in defending the claims advanced by the claimant. The application for costs is therefore dismissed.