Mr C Whittingham v British Airways plc: 3314654/2020
EMPLOYMENT TRIBUNALS
Case No 3314654/2020
Between
Mr C WhittinghamClaimantBritish Airways plcRespondent
Before
Employment Judge HawksworthNot represented for claimantDate 14 June 2023
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – rule 47 The claimant’s claim is dismissed under rule 47.
REASONS
Introduction
[1]The claimant Mr Whittingham was employed by the respondent from 1 April 2014 until 17 October 2020. He brought a claim for unfair dismissal. The claim form was presented on 7 December 2020, after early conciliation from 29 October 2020 to 29 November 2020.[2]The hearing of the claim was due to take place on 11, 12 and 13 July 2022, but it had to be postponed for judicial resourcing reasons.[3]The parties were notified on 8 July 2022 that the hearing could not go ahead, and were asked to provide new dates. The claimant did not reply to that request. Notice of the new hearing dates was sent on 16 July 2022.[4]The respondent’s solicitor contacted the claimant in the last few days with an amended bundle and a draft list of issues. The claimant did not reply.[5]The hearing today took place by video. It was due to start at 10.00am. The claimant has not attended and is not represented. The clerk spoke to him on the phone. He said he is not able to attend as he has a new job and is at work. He has not said he was unaware of the hearing date; he has told the Page 1 of 3 clerk that the hearing went out of his mind because he has had a lot of personal issues to deal with and recently started a new job. He has not prepared anything for today.[6]Rule 47 of the Employment Tribunal Rules of Procedure 2013 says what happens if a party does not attend a hearing: “If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.”[7]As an alternative to dismissing the claim or proceeding with the hearing, the tribunal could also postpone the hearing to another day.[8]When deciding what to do, I have to consider rule 47 together with the overriding objective in rule 2 which requires the tribunal to deal with cases fairly and justly, and that includes being fair to both parties.[9]The factors I have considered include:9.1 In this case the claim is for unfair dismissal. It is now over 2 and half years since the date of dismissal, and that inevitably gives rise to evidential difficulties with memories fading;9.2 If the hearing were postponed, the new dates would be likely to be some months away. If the delay was as long as the previous postponement, that would mean a hearing in mid-2024;9.3 The hearing has been in the tribunal and the parties’ diaries for 11 months;9.4 The previous postponement was not the fault of either party, but the long wait the parties have had for this hearing ought to have meant that they had it at the forefront of their minds. The respondent’s recent communications with the claimant should have reminded him of it if he had forgotten;9.5 Three witnesses for the respondent have attended today with the respondent’s counsel and solicitor;9.6 The claimant has not made an application for postponement other than indicating this morning his intention to do so.[10]I considered postponing the hearing to start tomorrow morning. I have decided that would not be fair to the respondent. The claimant has not asked me to do that or suggested that he could attend tomorrow. If the hearing was postponed to tomorrow, this would require the respondent’s representatives and witnesses to attend again with the possibility that the claimant may still not be able to attend and may still not be ready for the hearing. It would also require another day of tribunal time being set aside for the case which may be lost. Page 2 of 3[11]It is not possible to proceed with the hearing today in the claimant’s absence, as it is not clear what he says is the basis for the dismissal being unfair.[12]I have decided that the claim should be dismissed under rule 47.[1]The claimant Mr Whittingham was employed by the respondent from 1 April 2014 until 17 October 2020. He brought a claim for unfair dismissal. The claim form was presented on 7 December 2020, after early conciliation from 29 October 2020 to 29 November 2020.[2]The hearing of the claim was due to take place on 11, 12 and 13 July 2022, but it had to be postponed for judicial resourcing reasons.[3]The parties were notified on 8 July 2022 that the hearing could not go ahead, and were asked to provide new dates. The claimant did not reply to that request. Notice of the new hearing dates was sent on 16 July 2022. The rescheduled hearing was due to take place on 14, 15 and 16 June 2023.[4]The respondent’s solicitor contacted the claimant a few days before the rescheduled hearing, with an amended bundle and a draft list of issues. The claimant did not reply.[5]The claimant did not attend the hearing on 14 June 2023 and was not represented. For reasons explained in a judgment and reasons given at the hearing on 14 June 2023 and sent to the parties in writing on 12 July 2023, I dismissed the claim under rule 47. The respondent’s application for costs[6]On 2 August 2023 the respondent made an application for costs against the claimant. (The dates in the background section of the respondent’s Page 1 of 4 application are not correct. The procedural chronology with the correct dates is set out above.)[7]The respondent says that the claimant acted vexatiously and unreasonably by not engaging with the respondent and by not attending the final hearing.[8]The respondent says that the claim had no reasonable prospect of success because the claimant failed to confirm the basis on which he said his dismissal was unfair, and he failed to consider a costs warning letter sent on 21 May 2023 which said that the claim had no reasonable prospects of success.[9]The claimant replied to the respondent’s application in an email on 22 September 2023. The claimant said that he had been suffering stress and anxiety because of serious family issues. He was trying to maintain a much needed new employment role and inadvertently lost track of the hearing dates. I accept what the claimant says about this.[10]The respondent said it was happy for the costs application to be decided without a hearing. The claimant did not request a hearing. I decided that in the interests of proportionality and saving time and costs, and in light of the parties’ positions, the application could be decided without a hearing.
The law
[11]The power to award costs is set out in the Employment Tribunal Rules of Procedure 2013. Under rule 76(1) a tribunal may make a costs 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 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.”[12]Rules 74 to 78 provide for a two-stage test to be applied by a tribunal considering costs applications under Rule 76. The first stage is for the tribunal to consider whether the ground or grounds for costs put forward by the party making the application are made out. If they are, the second stage is for the tribunal to consider whether to exercise its discretion to make an award of costs, and if so, for how much.[13]In determining whether unreasonable conduct under rule 76(1)(a) is made out, a tribunal should take into account the ‘nature, gravity and effect’ of a party’s unreasonable conduct (McPherson v BNP Paribas (London Branch) 2004 ICR 1398, CA). However, it is not necessary to analyse each of these aspects separately, and the tribunal should not lose sight of the totality of the circumstances (Yerrakalva v Barnsley Metropolitan Borough Council 2012 ICR 420, CA). At paragraph 41 of Yerrakalva, Mummery LJ emphasised that: Page 2 of 4 “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it has.”[14]When assessing whether the ‘no reasonable prospect of success’ ground in rule 76(1)(b) is made out, the test is not whether a party had a genuine belief in the prospects of success. The tribunal is required to assess objectively whether at the time it was brought, the claim had no reasonable prospect of success, judged on the basis of the information known or reasonably available to the claimant, and what view the claimant could reasonably have taken of the prospects of the claim in light of those facts (Radia v Jefferies International Ltd EAT 0007/18). Conclusions Are there grounds for a costs order?
Conclusions
[15]I first need to consider whether there are grounds for a costs order under rule 76(1)(a) or (b).[16]The claimant’s failure to engage with the respondent and to attend the hearing was unreasonable. He should have replied to the respondent and, if he was not able to attend the hearing, he should have let the respondent and the tribunal know. The effect of these failures was that the hearing was unable to proceed on 14 June 2023. There are grounds to make a costs order under rule 76(1)(a).[17]I do not find that this conduct was vexatious. It was not deliberate or for an improper purpose. I have accepted what the claimant says about his reasons for failing to engage with the respondent and for failing to attend the hearing. He was dealing with very difficult circumstances and the claim went out of his mind.[18]Also, as an unrepresented party, it was not unreasonable of the claimant not to accept what was said in a costs warning letter sent by the respondent.[19]Turning to rule 76(1)(b), the claimant’s claim for unfair dismissal is not one which, assessed objectively at the time it was brought, had no reasonable prospect of success. The claimant said in his claim form that the respondent failed to comply with the disciplinary policy and that there were three procedural problems with the dismissal process. He complained about his witness statement not being sent to him to be verified, about a failure to interview a crucial witness and about the use of previous disciplinary warnings. Those are all matters which might have affected the fairness of the dismissal. It is not possible to say that the claimant should reasonably have been aware that his claim had no reasonable prospect of success.[20]This means that there are not grounds to make a costs order under rule 76(1)(b). Page 3 of 4 Exercise of discretion[21]As I have found that there are grounds to make a costs order against the claimant under rule 76(1)(a), I go on to consider whether to exercise my discretion to make an order.[22]In considering whether I should award costs, I have taken into account the fact that the claimant was given a costs warning by the respondent. However, for the following reasons, I have decided that I should not exercise my discretion to make an award of costs:22.1 orders for costs in the employment tribunal remain the exception rather than the rule;22.2 the claimant was a litigant in person;22.3 the claimant was facing very difficult personal and family circumstances and I have accepted that these were the reason for his failures to engage and attend the hearing;22.4 ultimately the claim has been dismissed and so the respondent has not been put to additional costs as a result of the claimant’s failures to engage and attend.[23]For these reasons the respondent’s application for costs is refused.