Employment Judge McNeill QCMs M. Tutin (instructed by Counsel) for respondentDate 16 December 2020
JUDGMENT
[1]The Claimant’s claim that the Respondent acted in breach of contract in not granting her voluntary redundancy is upheld.[2]The Claimant is entitled to the sum of £14,914 by way of damages for breach of contract.[3]The remainder of the Claimant’s claims are dismissed.
REASONS
for the judgment dated 3 October 2019 which was sent to the parties on 1 November 2019, provided pursuant to a request from the Claimant dated 11 November 2019[1]The Claimant brings claims in respect of underpayments of holiday pay, breach of contract/unlawful deductions in the non-payment of an excess baggage and holiday bonus, breach of contract in not granting early voluntary redundancy to the Claimant and unfair (constructive) dismissal. A claim in relation to the failure to provide a statement of particulars pursuant to s1 of the Employment Rights Act 1996 (ERA) has not been pursued.[2]The Claimant resigned from her employment with the Respondent by a letter dated 14 March 2018. Her resignation took effect on 25 March 2018. One of the issues before the Tribunal was whether the Claimant’s resignation constituted a constructive dismissal.
Findings of Fact
[3]The Claimant was employed by British Midland International (BMI) from 28 August 1995 until her employment was transferred to the Respondent on 1 November 2012 pursuant to the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). She was employed as an Aircraft Dispatcher, although her job following the TUPE transfer was labelled “Turnaround Coordinator”.[4]Following the TUPE transfer, the Claimant was encouraged to sign a contract of employment with the Respondent but she chose not to do so. She was happy to remain on her BMI contract. The Claimant was not placed under any undue pressure to sign the contract with the Respondent. Although the Respondent wanted its staff to be employed on common terms and conditions, it knew that it could not require this.[5]Neither the Claimant nor the Respondent was able to produce to the Tribunal either the Claimant’s individual contract of employment with BMI or any collectively agreed terms on which the Claimant was employed by BMI. Neither the Claimant nor the Respondent were able to find such documents during the disclosure process. Although there plainly was a contract of employment which governed the employment relationship between the Claimant and the Respondent from 1 November 2012 until 25 March 2018, neither party could provide written evidence as to the details of those terms. That did not make the Tribunal’s task any easier.[6]BMI was purchased by the Respondent’s parent company, International Airlines Group (IAG), shortly before BMI entered administration. At the time of the TUPE transfer, the Claimant worked part-time. Her job involved tasks such as boarding departing passengers, de-boarding arriving passengers, liaising with the flight deck and loaders, fueling and stocking the aircraft, aircraft security and checking the weight and balance of the aircraft (“aircraft trim”).[7]Immediately following the TUPE transfer, the Claimant and the 23 or so BMI employees who transferred with her, were given the title Turnaround Coordinator (TRC) by the Respondent. This was a new job title created for the incoming BMI Aircraft Dispatchers. The Respondent already had existing employees carrying out the same role as the Claimant who had the job title of Turnaround Manager (TRM). The TRMs were all existing employees of the Respondent who, for historical reasons, were better paid, and therefore more expensive for the Respondent to employ, than the TRCs. Following the TUPE transfer, no new TRMs were engaged, only TRCs. The group comprising both TRCs and TRMs was described by the Respondent as “TRMC”.[8]At the end of 2016, the Respondent put forward a significant change programme for its underwing operation at Heathrow terminals 3 and 5. This was known as Project Independence. The project set out to improve safety standards, give better service to customers and cut costs. The cost-cutting exercise involved the reduction of staff numbers in the department where the Claimant was employed.[9]There was consultation with the trade unions in relation to the project. A letter to Mick Rix, GMB National Officer, dated 8 November 2016, indicated a proposal to cut the numbers in the TMRC group from 227 to 184, a reduction of 43 jobs. During consultation with the trade unions, the Respondent indicated that its proposals would lead to a cost benefit of £4.9 million in 2017 and £15 million in 2018. These were projections.[10]During the consultation with the trade unions, the Respondent referred to a “proposal of voluntary redundancy for those at risk colleagues who would like to leave the business”. In answers to questions, the Respondent stated that, if it were oversubscribed for voluntary redundancy, it would “work with the Trade Unions to determine how best to manage the demand”. In relation to whether there would be compulsory redundancies, the Respondent said that its “final proposal would see a number of options for affected staff to choose from including Voluntary Redundancy” and there was “no proposal to make any compulsory redundancies as a result of these changes”. Discussions would take place with the trade unions in the event of “insufficient take up of the voluntary arrangements of applicants for the new role to make the changes possible”.[11]Before the implementation took place, there would be a staff ballot. If the ballot was in favour of implementing the changes, the turnaround work would remain within BA. If not, the work would be outsourced to handling agents. As the head of Turnaround Operations, Mr David Wilding, explained to the Tribunal, the threat of losing the turnaround work had been there for 20 years. The Respondent wanted to be in a place where it had the best opportunity to keep the work. The Respondent’s motivation to persuade affected employees to vote in favour of the proposed change was strong.[12]The Claimant attended a briefing on the proposed changes. Mr Wilding carried out the briefing. Neither party could provide a precise date for the briefing but it was probably shortly before the ballot which took place on 24 and 25 May 2017.[13]What was said at that briefing is very much in dispute and relevant to matters I have to determine. The Claimant said that she and the other attendees were told that the Respondent was making changes on the ramp, associated with streamlining and cost-cutting. They were creating a new job title of Aircraft Departure Manager which would replace both TRMs and TRCs. She said that Mr Wilding said at the meeting: “if you do not accept the changes then we cannot guarantee you will stay in a British Airways uniform”. The meaning was clear. If the TRMCs did not vote in favour of the changes, their jobs would go to an outside handling agent.[14]The Claimant’s evidence was that Mr Wilding also said that as part of the reorganisation the Respondent was offering voluntary redundancy. He said: “everyone who wants it will get it and we will back-fill if we have to”.[15]The Claimant saw this as a “carrot” to help the reorganisation go through. The Claimant was not only willing to leave but was keen to leave. The job had changed and she was thinking of taking up a different role, teaching and coaching horse riders. The voluntary redundancy money would be helpful.[16]During the course of her evidence, the Claimant was taken to slides used during the presentation. Those slides indicated that VR applications from TRMs would be “prioritised”. The Respondent contended that this clearly indicated that TRMs would have priority in the voluntary redundancy process. The Claimant said that she understood this to mean that TRMs would be allowed to go first. It was not in dispute that there would be different exit dates for those taking voluntary redundancy.[17]The Claimant relied on a witness statement from a Ms Emma Stone, signed with a statement of truth. Ms Stone said that it was clear that the Respondent wanted the TRMCs to vote in favour of the proposal. She said that voluntary redundancy was offered and that it was made 100% clear that anyone who wanted voluntary redundancy could have it. She said that this happened in her meeting and, from talking to other TRCs, she knew that the same was true of other meetings. There were no statements by BA managers to the contrary.[18]The Claimant also relied on anonymous witness statements from three other employees who said that the proposal was sold to the TRMCs on the basis that they could have voluntary redundancy if they did not want to take up the role of Aircraft Departure Managers. She also relied on text messages saying much the same thing. One individual recorded in a text message that she remembered it being said that “anyone who wants voluntary redundancy can get it”, however, “TRCs may have to wait longer”. Reference was made to back filling so that anyone who wanted to go could go.[19]Mr Wilding, in his evidence, denied making the comment about staying in a BA uniform. He said that the proposals were to result in the reduction of about 40 employees in the dispatch department: “while the offer of voluntary redundancy was given to all staff in the Turnaround department, it was made clear to staff at the briefings that voluntary redundancy would be agreed with TRMs first (as this would create higher cost saving because of their more expensive contracts) and it was only if we didn’t fill all the voluntary redundancy slots with TRMs that we would allow voluntary redundancy to the TRCs”. Mr Wilding denied saying that anyone who applied for voluntary redundancy would be granted it.[20]When cross-examined, Mr Wilding explained that he did not speak from a script at the briefings. He took people through the slide pack. He said that he made it clear that TRCs may not get voluntary redundancy.[21]Ms O’Shea, who conducted other briefings and gave evidence to the Tribunal, was also clear that there was no promise of voluntary redundancy to all staff. Her evidence was consistent with that of Mr Wilding.[22]The slide pack was referred to in the evidence. It was described as “TRMC Presentation” and was dated April 2017. The first slide was entitled “our proposal – a re-cap”. The slide showed the logos of other handlers down its right-hand side: handlers who might benefit from the contract if the work were outsourced. The first bullet was: “We work in a competitive industry and want to ensure we continue having BA colleagues turning BA aircraft”. It was made clear that the proposal would be implemented in two phases: Phase 1 would start in September 2017 and Phase 2 in March 2018, subject to the outcomes and review of Phase 1. Later there were 4 possible dates for voluntary redundancies taking effect.[23]Reference was made to “Deferred VR over 2017 and 2018”. It was stated that: “All TRMCs would be offered voluntary redundancy and able to apply for part-time/job share working. Voluntary redundancy applications will be prioritised from TRM applicants first”. It was then stated under a heading “Voluntary Redundancy and flexible working” that “Enhanced Voluntary redundancy would be available with flexible leaving dates offered. TRMCs would also have the option to move to part-time working or job-sharing”.[24]In a section headed Key FAQs, the first question was: “What are the voluntary redundancy terms”? The answer was: “An offer of Enhanced Voluntary Redundancy including 5,000 pounds retraining payment would be offered to all permanent TRMCs across a deferred exit programme. The earliest exit date is anticipated to be November 2017, and the latest exit June 2018. Applications would be prioritised from the TRM community”. The final slide contained the words: “voluntary redundancy is available to all…TRMC staff”.[25]In determining whether I accepted the Claimant’s evidence about what was said at this meeting, I made my own assessment of the witnesses based on their oral evidence. I took into account that the witnesses relied on by the Claimant had not attended to be cross-examined on their accounts and in the case of all but Ms Stone, had not provided witness statements. I therefore could not give those accounts the weight that they may have had if they had attended for cross-examination. There was nevertheless a thread of consistency between all the statements.[26]In relation to the Respondent’s evidence, the Respondent submitted that Mr Wilding’s evidence should be preferred. It would make no commercial sense for the Respondent to make a guaranteed offer of voluntary redundancy to all employees when it did not know how many would apply. In any event, the correspondence which post-dated the ballot made it clear that what was being offered were ‘preferences’, which included voluntary redundancy. It was, as is normal under voluntary redundancy schemes, for the employer to decide whether to accept or reject applications for voluntary redundancy depending on its business needs. Normal commercial practice should be taken into account.[27]As is so often the case, it was the contemporaneous documentation which was helpful in assessing differing accounts of the same events. I noted that nowhere in the documentation was it stated that voluntary redundancy might only be available to some of the group. Indeed, looking objectively, much of the language indicated the contrary: such as that “voluntary redundancy would be available to all” and that “all TRMCs would be offered voluntary redundancy”. The reference to prioritisation of TRMs was entirely consistent with what the Claimant said, namely that TRMs would be able to go first.[28]I preferred the Claimant’s evidence on this issue. The Claimant gave her evidence in a clear and straightforward way. Where there were differences between her evidence and Mr Wilding’s evidence, I preferred her account. I took into account the strong pressure to keep this work within BA which was communicated to the group and that the clear message was to vote in favour of the proposal. I also took into account that the Claimant did not specifically complain about not receiving voluntary redundancy or make the allegations now made in relation to that promise until February or March 2018.[29]The day after the second day of the ballot, in which the Claimant voted in favour of the proposal, a letter was sent to the Claimant. This letter referred to the requirement that the Claimant should submit her preferences from 4 options that included voluntary redundancy. It then stated: “Should you wish to leave BA under an Enhanced Voluntary Redundancy Arrangement, your Voluntary Redundancy offer is £9,914 pounds to compensate you for the loss of your employment by reason of redundancy. In addition BA will pay you an additional compensation payment of 5,000 pounds. BA will provide you the full terms of this arrangement it this is your preferred option”.[30]This letter was accompanied by a pack. In the pack, it was stated that if the Claimant’s preference was for voluntary redundancy, she would receive a formal written offer outlining the full terms of the arrangement. She was told that her preference form was not binding. She was also told that if voluntary redundancy was one of her preferences, the Respondent would review whether they were able to release her and, if so, which leaving date was allocated.[31]The Claimant accepted the offer of voluntary redundancy in the letter of 26 May 2017, although neither party was able to produce this acceptance.[32]On 30 June 2017, the Claimant was sent another letter offering enhanced voluntary redundancy. In this letter, the Respondent stated that the criteria for determining whether employees could be released under voluntary redundancy would be “entirely based on the needs of the business”. This letter was very much more detailed.[33]The Claimant trusted the Respondent to comply with what it had said at the pre-ballot briefing. She confirmed that she wished to leave the Respondent as part of the voluntary redundancy scheme and that she had understood the terms of her voluntary redundancy offer on 3 July 2017.[34]On the same date, the Claimant sent an email to Ms O’Shea. She referred to the offer of voluntary redundancy. She then requested a copy of her employment contract and confirmation of whether her holiday pay included shift pay in accordance with a judgment of the Reading employment tribunal in 2010.[35]On 31 July 2017, the Claimant’s husband, who is a solicitor and represented her at this hearing, wrote to the Respondent with a reminder about the Claimant’s earlier email to which no response had been received. He then asked if voluntary redundancy was being made available to his wife.[36]Ms O’Shea responded on 4 August 2017 that they were looking into the Claimant’s original email and would be liaising with the Claimant on their response.[37]On 20 August 2017, Ms O’Shea confirmed to Mr Wilding that voluntary redundancy would only be offered to TRMs.[38]On 31 August 2017, nothing further having been heard from the Respondent in response to the email of 3 July 2017, the Claimant, through her husband but with her express consent, submitted a grievance to the Respondent. The grievance related to the email of 3 July 2017 and, in particular, the holiday pay matter.[39]On 1 September 2017, Mr Wilding informed the Claimant and her husband that he was setting up a meeting on 19 September to discuss the Claimant’s concerns and that he would “send a copy of [her] employment contract as soon as [he could].”[40]Also on 1 September 2017, Ms O’Shea responded in relation to the shift pay matter that the Respondent paid “consolidated shift pay” whether an employee was working or on holiday. In fact, the Claimant’s pay slips show shift pay as a specific item. The Claimant was not happy with this response and her husband wrote an email on 4 September 2017 setting out further questions about this. In the same email, Ms O’Shea informed the Claimant that voluntary redundancy was not being offered to TRCs.[41]On 8 September 2017, the Claimant requested the job descriptions and qualification/training requirements for TRMs. These were not provided.[42]On 19 September 2017, the Claimant met with Mr Wilding. The meeting was treated as an informal meeting and no notes were kept. Mr Wilding was unable to answer the Claimant’s questions. He contacted HR after the meeting in order to try to obtain a copy of the Claimant’s employment contract. Although he said in evidence that he sent an email to someone named “Francesca” in relation to this issue, no such email was disclosed by the Respondent. The grievances remained unresolved.[43]When the Claimant reminded Mr Wilding again in December 2017 about her employment contract, Mr Wilding said that he had been unsuccessful and would try again. But the contract was not found. I concluded that no very great efforts were made to see whether the contract could be found. There was significant delay in providing a response to the Claimant’s request which was first made on 3 July 2017. If the Respondent did not retain a copy of the Claimant’s contract of employment, it could have said so.[44]In January 2018, the Claimant submitted a request for unpaid leave. This was to meet childcare commitments. The Claimant had had such a period of leave in 2013. Ms Kate Hogg, who normally assisted the Claimant with childcare, had her own caring commitments connected with a sick relative. By 11 February 2018, this had not been resolved. In the event, Ms Hogg was able to continue.[45]On 5 February 2018, via her husband, the Claimant communicated a further grievance to the Respondent. She subsequently confirmed this grievance in an email dated 15 February 2018. This grievance related to the matters previously raised relating to shift pay, the contract of employment and the job descriptions. Mr Stoate stated that “if the Claimant were offered voluntary redundancy none of the other grievances would need to be pursued”. This was in fact a without prejudice statement but the parties agreed that I could read it.[46]A grievance meeting was originally arranged for 16 February 2018, but then postponed when it became clear that the Claimant was not working on that day. The Claimant was told that a meeting would be arranged from 6 March.[47]On 6 March 2018, having heard nothing, the Clamant enquired as to whether the grievance meeting was going ahead. The Claimant referred to the meeting with David Wilding in which he stated that anyone wanting voluntary redundancy would be given it. She had been sent a letter with the voluntary redundancy offer and the amount of money that would be paid but had not received her voluntary redundancy. She asked for this to be dealt with together with her other grievances.[48]On 6 March, the Claimant was sent an explanation as to why the grievance meeting had not yet been fixed, which was because of the extreme bad weather (“beast from the east”) which had caused significant disruption to the Respondent’s operations. Mr Stonebanks was allocated as the grievance manager and the Claimant was told that he would contact her directly.[49]Before the grievance meeting took place, on 14 March 2018, the Claimant resigned. She said that her decision was “influenced in large part by BA’s failure to answer any of the questions concerning her employment”. She reserved her position as to whether this constituted unfair or constructive dismissal. 25 March 2018 was her last day of work in accordance with notice period.[50]The grievance hearing went ahead on 18 March 2018. The Claimant was given notice of this. She attended and put forward her case. None of her four grievances (relating to her holiday pay, failure to be provided with her terms and conditions of employment, failure to be provided with a requested job description and failure to be granted voluntary redundancy) was upheld. The Claimant did not appeal these findings.[51]On 8 May 2018, the Claimant presented her claim to the employment appeal tribunal.[52]A list of issues was agreed between the parties. All issues remained live save in relation to the claim under s1 of the ERA. Law[53]The legal principles to be applied were largely uncontroversial.[54]In relation to her contractual claims, the Claimant bears the burden of proof. Where she claims unlawful deductions from her wages and a failure to pay the holiday pay to which she was entitled, she must prove what she has not, and should have been paid.[55]In order to make out her claim for constructive dismissal, the Claimant must prove that the Respondent acted in repudiatory breach of contract and that she resigned in response to that breach rather than affirming the contract. If a “last straw” was relied on, it must be a matter that was more than trivial.[56]In relation to repudiatory breach, the key question was whether the employer did not intend to be bound by the contract as properly construed.[57]The only area where the law was at all controversial between the parties related to the Claimant’s claim that the Respondent’s promise that everyone would be entitled to voluntary redundancy if they wanted it constituted a contractual term by which the Respondent was bound.[58]The Claimant relied on Dresden Kleinwort Ltd v Attrill [2013] ICR D30, CA. I was also referred to Chitty on Contracts 3rd Ed 2-083 and 2-084 in relation to unilateral contracts. In short, the Claimant submitted that the Respondent’s promise of voluntary redundancy was an offer of a unilateral contract which could be accepted by fully performing the required act, in this case voting in the ballot. There was no need to give advance notice of acceptance. The offer could be accepted by performance, in this case voting in the ballot. The offer could have been withdrawn before acceptance and was not.[59]I was referred to the judgment of Elias LJ in Dresdner Kleinwort, where it was stated that an employer’s statement that it would create a minimum bonus pool, with the intention of retaining staff so that the investment banking division operated as a going concern until the point of sale, was a term of the employees’ contracts. I took into account in particular paras 60-73, 80-81, 89 and 98-100 and 142 of the judgment.[60]At paragraph 81 of the judgment, it is stated that where a change is being introduced against the background of an existing contractual relationship the onus will be on the party, asserting that there is no intention to create legal relations, to establish that fact. Also, at paragraph 89, it is stated that where there is a promise made in the context of a pre-existing legal relationship (in Dresdner, as in the current case, an employment contract), viewed objectively, the natural inference is that the promise will take effect in the same way as other contractual terms.[61]The Respondent sought to distinguish Dresdner from the current case on the basis that the announcement in Dresdner was clear and unequivocal in that there was a specified bonus pool. In the current case, it could not be known how many TRMCs would apply for voluntary redundancy.[62]I did not consider that that factual distinction distinguished Dresdner from the current case. In the current case, as was clear from the offer sent to the Claimant on 26 May 2017, the Respondent will have been well aware of the costs of voluntary redundancy and the amount payable to each employee if they opted to take voluntary redundancy. Much as in Dresdner, the Respondent was taking a calculated commercial risk, in circumstances where it did not wish to lose work to an outside handling agent. Conclusions Contractual claim – voluntary redundancy payment
Conclusions
[63]In relation to any alleged contractual term, an objective approach must be applied. I considered the relevant facts and matters objectively. On the one hand, I accepted that it is common practice for employers to ask for volunteers for redundancy but to retain a discretion as to whether or not to accept applications. On the other hand, in the current case, statements made orally at the meeting that pre-dated the ballot, together with the slides shown at that meeting, involved a clear promise to staff that anyone who wanted voluntary redundancy could take it. Applying the approach in Dresdner, there was a promise of voluntary redundancy made to the Claimant and other attendees at the briefing. That promise was made for the specific purpose of keeping the TRMC work within the Respondent rather than outsourcing to handling agents and there was strong encouragement to the relevant employees to vote in favour of the proposal in the ballot.[64]Looking objectively at all the circumstances, I concluded that there was an intention to create legal relations. TRMCs would vote in the ballot confident that the Respondent would comply with its promise. Within the context of an existing employment contract, this was a promise which became part of the Claimant’s contractual terms and would take effect like any other contractual terms. The refusal to allow the Claimant to take voluntary redundancy, after the ballot had successfully secured the TRMC work for the Respondent, was in breach of contract.[65]Although there was some ambiguity in the letter sent to the Claimant on 26 May 2017, the voluntary redundancy payment was expressed as an offer which the Claimant accepted. Had it been necessary to do so, I would also have determined that this had contractual force, in spite of statements in the accompanying pack.[66]What happened after 26 May 2017 is not relevant to this analysis. The contract was already concluded and the failure to make the voluntary redundancy payment was in breach of contract. That claim is therefore upheld. Constructive dismissal[67]The promise that all TRMCs could take voluntary redundancy if they wished to do so was reneged on. That was in breach of the term of mutual trust and confidence in the contract of employment. However, the Claimant continued to work for the Respondent for many months after the breach and, in doing so, affirmed the contract of employment. The Claimant knew that TRCs would not receive voluntary redundancy by September 2017 at the latest. Yet the first time she raised a clear complaint about the failure to offer her voluntary redundancy was on 6 March 2018. Even if her husband’s letter of 5 February 2018 were taken as a protest about the failure to pay voluntary redundancy, the fact remained that she had continued to work for the Respondent for many months following the repudiatory breach and affirmation is made out.[68]I considered whether other matters relied on by the Claimant, including the failure to deal with her requests for unpaid leave and for her contract of employment, failures in relation to her complaint about her holiday pay and the failure to provide job descriptions requested amounted to a repudiatory breach in the sense that they evinced an intention by the Respondent not to be bound by the contract. Was there a “last straw” that was more than trivial?[69]While I accepted that the Claimant resigned from her employment because she felt that the Respondent was not treating her fairly, I was not satisfied that she resigned in response to a series of events which together amounted to a repudiatory breach of contract. Her letter was not clear as to the reason for dismissal. No last straw was referred to. The Claimant resigned after asking the Respondent to deal with her grievances in February 2018. The act of asking the Respondent to deal with her grievances was an act consistent with the Claimant accepting the continuing subsistence of her contract of employment. She then resigned before the grievance was heard. I did not identify a last straw which caused her to resign. Further, if there had been any repudiatory breach prior to 5 February 2018, I considered that her actions at and after that date were consistent only with an acceptance that the contract was continuing. It was her choice to resign before the grievance was heard.[70]The unfair dismissal claim is therefore dismissed. Remaining matters[71]As to the remaining claims, in order to make out her claim for unpaid holiday pay, the Claimant would need to have established, as a starting point, the days in respect of which she was underpaid and in what amounts. There was no such evidence before me. The allegation amounted more to a general complaint, the merits of which I could not test without the necessary facts.[72]In relation to the other contractual/unlawful deductions claims, the Claimant had the burden of proving that she had a contractual right to the payments in question and failed to meet that burden. These claims rested on the Claimant’s recollection and the amounts shown on some payslips. That was not sufficient to enable her to make out these claims. In relation to one of the payments, excess baggage bonus, there was differing evidence from the Claimant and another former employee of BMI, Simon Cooper, as to whether the bonus was contractual or not. Mr Cooper did not attend to give evidence and therefore his evidence was untested. Nevertheless, without seeing the contract of employment, I was not satisfied that the sum in question was a contractual bonus. These clams were not particularised and involved only estimates of loss. They were not made out.[73]At the conclusion of the hearing, the Respondent contended that the amount of the voluntary redundancy payment should be reduced(1) because the Claimant would have left her employment in October 2017 if she had gone on voluntary redundancy; and(2) because of a failure to mitigate her losses.[74]I found that on the basis of all the evidence, including the phased application of voluntary redundancy, that the Claimant was unlikely to have left her employment before 25 March 2018, if she had taken voluntary redundancy. No question of mitigation arose as she would have received that sum in full, irrespective of when she left.[75]I was asked by the parties to consider whether the Claimant’s compensation should be uplifted or discounted pursuant to s207A of the Trade Union and Labour Relations (Consolidation) Act 1991. I concluded that while the Respondent had not dealt promptly with the Claimant’s July 2017 grievance and it had never really been resolved, the Claimant had resigned before allowing the Respondent to deal with her February 2018 grievance and had not appealed the outcome of that grievance. I concluded that it was not just and equitable either to uplift or reduce the Claimant’s award.[76]The Claimant would therefore be awarded the sum of £14,914 as damages for breach of contract.
Conclusions
[1]An extension of time is granted to the Claimant for the making of her application for a preparation time order or, in the alternative, a costs order, to the date when the application was made.[2]The Claimant’s application for a preparation time order or, in the alternative a costs order, is dismissed.
Conclusions
[1]The Claimant brought a number of claims to the employment tribunal arising out of her employment and its termination by the Respondent. Her claims were heard over three days on 1-3 October 2019.[2]One of the Claimant’s claims, that the Respondent acted in breach of contract in not granting her voluntary redundancy, was upheld. Her other claims, in respect of underpayment of holiday pay and other alleged breaches of contract, were dismissed. There was an alleged failure to provide a statement of particulars of employment pursuant to s1 of the Employment Rights Act 1996 that was not pursued.[3]At the conclusion of the hearing, a judgment with reasons for the judgment was given orally. A judgment dated 3 October 2019 was sent to the parties on 1 November 2019.[4]On 11 November 2019, the Claimant requested written reasons for the judgment. Reasons dated 25 November 2019 were sent to the parties on 10 December 2019[5]On 7 January 2020, the Claimant, who has at all times been represented by her husband, who is a solicitor and a partner in the firm Taylor Wessing, made an application for costs against the Respondent. Although describing the application as an application for “costs”, in the submission in support of the application, the Claimant stated that there was “no need to distinguish between a costs order and preparation time order”. This statement foreshadowed an issue that has been contentious between the parties. That issue is whether a Tribunal that decides to make an order in accordance with rule 76 of the Employment Tribunals (ET) Rules of Procedure in favour of a party who has been represented by a person who is, as a matter of fact, a solicitor but is not representing a party in that capacity, should be entitled to a costs order or a preparation time order (PTO).
Issues
[6]There have been three key issues in this costs application. I set these out in what I consider to be a logical order, rather than following the order of submissions of either party.a. Should the time for making a costs application be extended?b. Did the Respondent or its representatives act unreasonably and/or abusively in the way that the proceedings were conducted and, if so, should the Tribunal exercise its discretion to make an order under rule 76 of the ET Rules of Procedure?c. If an order is to be made, should it be a costs order or a PTO? Extension of Time[7]Pursuant to rule 77 of the ET Rules of Procedure, an application for a costs order or PTO should be made: “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”. The judgment in this case was sent to the parties on 1 November 2019 and any application should have been made by 29 November 2019. The application was in fact made on 7 January 2020. It was therefore out of time and the Claimant did not seek to argue otherwise in oral submissions.[8]The Tribunal has a power to extend time and the Claimant contended that an extension should be granted in this case. At the conclusion of the hearing on 3 October 2019 and after the Claimant had learned the outcome of the case and had heard the reasons for the decision, the question of written reasons was raised by the Claimant. The Claimant having succeeded in her case, I indicated that this may be a matter that the Claimant wished to reflect on, drawing the Claimant’s attention to the judgments online database, which is accessible to the public, and to the time factor involved in the provision of written reasons. It was explained that the Claimant had the option of requesting written reasons at the hearing or once the judgment was received. The Claimant elected not to pursue a request for written reasons there and then. The Claimant submitted that this decision was taken “in a good faith effort to limit the burden on the Tribunal and the public purse” and I accepted this.[9]The Claimant submitted that an application for costs could not be made until the written reasons were received, which was on 10 December 2019. She honestly believed that the 28 day deadline ran from this time and she complied with it.[10]The Respondent submitted that the Claimant’s application was made 28 days after the deadline for making a costs application should have been made and that it was therefore significantly out of time. The first time that an extension of time was requested by the Claimant was in a letter dated 24 January 2020. It was submitted that I should look at the Claimant’s submission in relation to her understanding of the time limit with a critical eye, given the clear knowledge of the Claimant and her husband of the relevant legislation and rules and their ability to carry out research.[11]The Respondent submitted that it was not in the interests of justice to extend time for the making of the application. The parties had been given detailed reasons for the decision at the hearing and there was no explanation as to why the application was not made in time. There was no need for the Claimant to have sight of the written reasons in order to make a costs application. The Respondent was entitled to finality and certainty in the litigation, which would be undermined by an extension of time. In any event, the application was meritless.
Conclusion
[12]I considered that the Claimant’s stated reasons for making the application out of time were genuine and that she had not realised that she must make an application within 28 days of the sending out of the judgment. While oral reasons were given at the hearing, it is was reasonable to want to see the written reasons before deciding whether to make a costs application. I did not consider that the application was without merit and, although the policy of finality and certainty in litigation is an important one, the interests of justice were in favour of allowing the extension of time in this case. An extension is therefore granted to the date when the application was made. Unreasonable and/or abusive conduct[13]The Claimant submitted that the proceedings were conducted aggressively by the Respondent with the intention that she would not pursue her case; that this caused extreme stress to the Claimant; and that this conduct was not reasonable. Other employees, who supported the Claimant, were unwilling to give evidence at the Tribunal or, in some instances, even to disclose their names.[14]In oral submissions, the Claimant focused on four matters in particular: i. That Mr Wilding, the Respondent’s main witness on the issue of whether voluntary redundancy was offered to the Claimant, lied to the Tribunal; ii. That the Respondent’s witness, Mr Stonebanks, gave evidence to the Tribunal that was not true; iii. Correspondence sent by the Respondent which was “without prejudice save as to costs”, which the Claimant submitted was threatening, a bullying tactic, unreasonable and abusive; iv. The cross-examination of the Claimant which the Claimant described as “aggressive”.[15]In relation to the first two matters, the Claimant relied on the decision of the Employment Appeal Tribunal (EAT) (Wilkie J sitting with non-legal members) in Daleside Nursing Home Limited v Mrs C. Mathew UKEAT/0519/08/RN for the proposition that where a witness lies in relation to a matter that goes to the heart of what the case is about, that is unreasonable conduct. In the current case, it was submitted, Mr Wilding lied about whether a promise of voluntary redundancy was made by the Respondent to employees at a consultation meeting, a matter which lay at the heart of the case. Mr Stonebank lied about whether he had a highly relevant letter dated 26 May 2017 available to him at the grievance hearing.[16]The Respondent disputed that it had acted unreasonably. There was no finding that Mr Wilding or Mr Stonebank had lied. The Tribunal preferred the Claimant’s evidence to that of Mr Wilding and Mr Stonebank but that did not amount to a finding that either Mr Wilding or Mr Stonebank had been dishonest in their evidence. Mr Stonebank was not found to have been lying in relation to the letter which he said that he had seen at the grievance hearing. The Respondent said that it could no longer locate that letter, in spite of the Claimant having requested the Respondent to retain relevant documentation within days of the disciplinary hearing but there was no finding (and no basis for finding) that documents had been destroyed.[17]The Respondent submitted that Daleside was distinguishable from the current case. In Daleside, an allegation of explicit racial abuse lay at the heart of the claim. The finding by the Tribunal in that case amounted to “a clear finding by the Tribunal that the allegation of explicit and offensive racial abuse was false, and that it had been made up…..[as] a method of deflecting attention from disciplinary matters which the Claimant was anticipating”. The EAT described the Tribunal’s factual finding as a finding that the allegation was “a deliberate and, to an extent, cynical lie”. Later in the judgment (paragraph 20), the EAT stated that the case was one in which there was a “clear-cut finding that the central allegation of racial abuse was a lie”.[18]In relation to the correspondence, the Respondent submitted that there was nothing improper in the Respondent’s correspondence aimed at achieving settlement. It was neither heavy-handed nor oppressive.[19]In a skeleton argument, prepared by the Respondent’s Counsel, she submitted that her cross-examination was well within the boundaries set out in the BSB Code of Conduct. I did not invite oral argument on this issue. I had a clear recollection of the cross-examination which was firm but did not overstep any proper boundaries. Had I considered the cross-examination to be inappropriately aggressive, I would have intervened at the time. The Claimant did become distressed when she was being cross-examined and a short break was taken. Being cross-examined is a process many witnesses find distressing. I had every sympathy for the Claimant’s distress but did not consider that the cross-examination was improper. Conclusion[20]In considering whether to make a costs or preparation time order, I reminded myself that such orders are the exception rather than the rule in the Employment Tribunal. I should consider first whether there was conduct falling within rule 76(1)(a) and secondly, if there was, whether I should exercise my discretion to make a costs order. In considering whether conduct was unreasonable or abusive, I should look at the whole picture of what happened, including what may have been unreasonable or abusive about the conduct. It is also permissible to look at the effects of the conduct: Barnsley MBC v Yerrakalva [2011] EWCA Civ 1255.[21]I concluded that Daleside was distinguishable from the current case. Although the question of whether voluntary redundancy was promised went to the heart of the case, I did not make a finding that Mr Wilding or indeed Mr Stonebanks had been dishonest or that documents had been destroyed. I preferred the evidence of the Claimant to that of Mr Wilding as stated in the written reasons provided. The fact that I preferred the Claimant’s evidence is not equivalent to a “clear-cut finding that the central allegation….was a lie”, as in Daleside. I do not find that unreasonable conduct is made out on this ground.[22]I noted that certain individuals identified by the Claimant as potential witnesses did not attend the Tribunal to give evidence on her behalf but I did not have evidence which would enable me fairly to draw the conclusion that those individuals chose not to attend the Tribunal or to make statements because of any unreasonable conduct by the Respondent.[23]In relation to the “without prejudice save as to costs” correspondence, the Claimant offered to settle her claim on 21 March 2018 on terms that she would withdraw her claim if the voluntary redundancy payment was made to her. That offer was not accepted. On 21 August 2019, she modified her previous offer by offering to withdraw her claim on the basis that she was paid £14,000, a little less than the full voluntary redundancy sum.[24]On 23 August 2019, the Respondent made an offer to the Claimant headed: “WITHOUT PREJUDICE SAVE AS TO COSTS – COSTS WARNING”. The offer began with a statement that if the Claimant continued to pursue her claims against the Respondent, the Respondent would make an application for a costs order against her. Rule 76(1) of the Rules of Procedure was then set out. The Respondent then stated that the Claimant’s claims had no reasonable prospect of success. Five reasons were set out as to why the Claimant was acting unreasonably in bringing and continuing to pursue her claims. The Respondent stated that its costs at that point were £20,000 plus VAT and rising. The Claimant was advised to obtain independent legal advice from and employment law specialist in relation to the merits of her claim. It was stated again that the claim had no reasonable prospects of success and an offer was made that if the Claimant withdrew her claim, the Respondent would not pursue her for costs.[25]I considered that the Respondent’s letter was heavy-handed. It caused the Claimant to feel stressed. Some claimants, conducting their cases without assistance, may have felt on receipt of this letter from an organisation of the size and with the resources of BA plc that they had little realistic option but to withdraw their claim. Access to justice would then have been prevented. The Respondent must have known that the current case would largely turn on the determination of a dispute of fact and that it was not apt to describe the case as having no reasonable prospects of success.[26]I do, however, take into account in the current case, that the Claimant was proceeding with the assistance of her husband, who is a partner in Taylor Wessing solicitors. She had previously, with her husband’s assistance, brought a claim in the Reading Employment Tribunal which progressed to a full hearing. The Respondent was aware of the nature of the Claimant’s assistance. Although the Claimant’s husband is not an employment lawyer, he has been able to research her case fully and provide detailed reasoned submissions grounded in relevant case law. The letter did not have the effect of deterring the Claimant from pursuing her case,[27]Looking at the whole picture in this particular case, I do not consider that the Respondent’s letter was unreasonable or abusive. On different facts and with a claimant in a different position who was prevented or deterred from pursuing their claim by such a letter, I may have taken a different view.[28]For these reasons, I do not consider that the threshold for making a costs order or PTO is met. Were I wrong about that, I would not, for the reasons stated, exercise my discretion to make a costs order or PTO. Costs order or PTO[29]In view of my findings above, it is unnecessary for me to consider the interesting question of whether the appropriate order in this case would have been a costs order of a PTO, given the definition of “legally represented” in rule 74(2) of the Rules of Procedure.