Mr D Gomes v Bernard Matthew Foods Ltd: 3312316/2023
JUDGMENT
[1]The Claimant’s claims are dismissed as not being actively pursued as the Claimant has failed to attend a second Tribunal hearing.[2]Following the application by the respondent the respondent is awarded costs against the Claimant in the sum of £650.00.[3]The final hearing has been vacated.REASONS
[1]This judgment follows from the hearing on 13th June 2024 where the claimant failed to attend. His daughter attended to confirm his nonattendance and the claimant was given additional time to join the hearing but neither the claimant nor his daughter did so. The matter was adjourned to today and the claimant was told that if the claimant failed to attend for a second time without good reason the claims would be struck out.[2]The claimant was provided again today with an interpreter at public expense and now we had had two abortive hearings. The claimant had already failed to comply with Tribunal directions. I concluded that the claim was not being actively pursued and the claims were struck out.[3]An application for costs was made by the respondent’s solicitors at the hearing. The respondent had already put the claimant on notice of costs. The respondent’s application was limited to the brief fee of today’s wasted hearing of £650 (no VAT as the respondent is VAT registered.The law
[4]The application is made in accordance with Rule 76 (1) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013.[5]The application is made on the ground that the against the background of the claimant acted unreasonably in not complying with Tribunal Orders, not actively pursing the claim and in the claimant’s action in failing to attend today without good cause in accordance with Rule 76(1)(a) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. 5. Rule 75 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 states: 75.—(1) A costs order is an order that a party (“the paying party”) make a payment to— (a)another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative; (b)the receiving party in respect of a Tribunal fee paid by the receiving party; or (c)another party or a witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual’s attendance as a witness at the Tribunal. (2) A preparation time order is an order that a party (“the paying party”) make a payment to another party (“the receiving party”) in respect of the receiving party’s preparation time while not legally represented. “Preparation time” means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing. (3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings. A Tribunal may, if it wishes, decide in the course of the proceedings that a party is entitled to one order or the other but defer until a later stage in the proceedings deciding which kind of order to make.[6]Rule 76 Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 states: 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 re-engaged 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. Finding of fact[7]The background and the claimant’s non-attendance on the last occasion are covered in my case management summary from the hearing on 13th June 2024 and are not repeated here.[8]The claimant and his daughter had not attended by 10.10am for the hearing due to start. The claimant (and the respondent) having had the order and listing for today in advance and alsos a CVP link for today. The clerk checked the inbox and no emails had been received from the claimant and the respondent had not heard anything further.[9]We started the hearing at 10.15am and kept the interpreter in attendance until after I had considered the respondent’s applications in case he did so attend but he failed to so. I consider this unreasonable conduct as he was given a second chance on the last occasion and the hearing was listed in the first place as the claimant had failed to comply with the Tribunal’s order and the list of issues had yet to be finalised.Conclusions
[10]The first stage is the consideration of whether the grounds are made out. In view of the findings of fact above I conclude that the claimant has acted abusively or otherwise unreasonably in the way the proceedings (or part) have been conducted under Rule 76 (1)(a) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. The claimant has failed to engage in the tribunal process and actively pursue his claim. Further it is clear from the above that it failed to comply with orders of the Tribunal.[11]I now consider whether I should exercise my discretion in making an order since the grounds are made out. Whilst costs are the exception not the rule in Tribunal claims I take into account that the claimant was in essence given a second chance today to progress his claims. I also took into account the fact that despite being invited to do so the claimant has not provided any medical evidence or contacted with the respondent or the Tribunal before failing to appear today.[12]I have considered a number of other factors when deciding whether to exercise my discretion namely the claimantt’s means but I have had no evidence submitted to the contrary, whether the party is represented (which I have dealt with above), the nature of the claim and the timings and repeated failures above. I therefore exercise my discretion in the respondent’s favour.[13]Turning now, to the amount sought and dealing first with the respondent only claims the costs for the representation at today’s hearing. Mr Ashley’s brief fee is £650 plus VAT. His client is VAT registered so the application is limited to £650. I have considered the proportionality and reasonableness of the costs incurred. I consider it proportionate and reasonable to award these costs in accordance with Rule 76 (1)(a) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013.[14]I considered the claimant’s means in so far as he has failed to attend the hearing but that he has secured alternative employment on the basis of the claim form he submitted. Whilst conscious that this sum equates to over 2 weeks net pay it is reasonable given the costs the respondent will have incurred overall and given it is limited to a brief fee for today’s hearing. The claimant has now on two occasions wasted public funds for interpreters provided to assist him which we cannot recover.[15]As a result the claimant is ordered to pay the respondent’s costs of £650.00 I make judgment for the respondent in this amount.