Ajayi v Brent Racial Equality Council [1997] UKEAT 382_97_1410

EAT
Ajayi v Brent Racial Equality Council
[1997] UKEAT 382_97_1410 · 1997-10-14

JUDGE PUGSLEY:

Industrial Tribunals were brought into existence to provide an economic, expeditious, and efficient way of resolving issues. Sadly the purity of that aspiration has been somewhat sullied by the way in which legalism has made the areas of employment law highly complex, technical, often requiring skilled professional help. We venture to suggest that a member of the public listening to this case, would perhaps be with a comment made by Mr Mistry, the ex-Chairman of Brent Racial Equality Council, when he said that a claim of this nature could be subject to such waste of public funds provides a sad commentary on the manner in which public funds were being wasted.It is against that background that we would like to pay tribute to the skilful, restrained way in which Mrs Nash has conducted the case. We wish to make it quite clear that we all feel part of the victim of circumstances which have meant that thousands of pounds have been expended on this case. We are aware of the predicament she, and others like her, face when confronted with the immediacy of having to advise on a decision, which has significant adverse consequences for someone with whom they are cared to require to assist.The Applicant in this case made an application for a post of Director with the Brent Racial Equality Council and it is from that simple set of circumstances that were set in train the long and expensive saga which has followed. We can begin by taking the decision of the Industrial Tribunal promulgated on 29 January 1997, as the factual basis:
"1. By Originating Application dated 22 December 1995 the Applicant a Barrister at Law complained that she had been the victim of race discrimination at the hands of the Respondent a body funded by the Commission for Racial Equality and the London Borough of Brent."
The Tribunal made the following findings of fact:
"(a) The Applicant applied to the Respondent for the post of Director. She was not short-listed and presented her Originating Application. (b) The Respondent which was then in the process of setting up its organisation sought advice from the Commission for Racial Equality and immediately added the Applicant's name to its short-list and on 9 January invited her to final interview on 6 February. Notwithstanding the length of the notice that the Applicant was given she chose not to attend. (c) The matter has been listed for hearing on three occasions and on each occasion the Applicant has applied for an adjournment. The reason for the first application was that her aunt had died. The matter was listed for a prehearing review to be followed by an interlocutory hearing on 7 August and by letter dated 23 July the Applicant withdrew her application for the reason that the stress of representing herself was making the lives of herself and her family unbearable. (d) The Respondent has reasonably incurred outside solicitors fees of £132.19 in dealing with the matter. Its grant has been withdrawn, it is no longer in existence and is without funds to meet the bill."
The Tribunal then go on to say in paragraph 3 of their decision:
"Our conclusions are as follows. Rule 12(1) of the Industrial Tribunals Rules of Procedure 1993 provides that where in the opinion of the Tribunal a party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably, the Tribunal may make an order containing an award against that party in respect of the costs incurred by another party. In this case the Respondent has found itself with a complaint of race discrimination before it has really got off the ground. Being partially funded by the Commission for Racial Equality it has taken advice on the matter virtually as soon as the complaint has been made. Having then offered to meet the complaint of the Applicant and to add her to the short-list she has there upon withdrawn interest. It is our finding that in spite of the fact that she has suffered no detriment she has acted unreasonably in continuing these proceedings and each time that the matter has been listed she has sought an adjournment including today's hearing. In the circumstances we feel that the Applicant who for the past twelve months now has had little or no interest in this matter should meet the Respondent's very modes outlay. The Respondent has made no claim in respect of its own expenses."
It is said there was no evidential basis for the criticisms made.At an earlier hearing of this Employment Appeal Tribunal the Chairman was asked for his comments. His reply set out in a letter dated 17 July 1997 was this:
"I would make the following points: (i) My note shows that the Applicant was short-listed along with the other candidates after the intervention of the Commission for Racial Equality which funded the Respondent."
It seems a slightly ambiguous answer as justify the finding of fact that the employer took advice from the Commission for Racial Equality "as soon as the complaint has been made".The Chairman then goes on to say:
"(ii) I have checked with the file which shows that the hearing on 6 June was postponed at the request of the Applicant. The Applicant then withdrew prior to the hearing on 7 August. On 20 December the Applicant's representative indicated that she would probably be asking for a postponement of the costs hearing on 24 January but was advised by a letter dated 9 January that it was unlikely that a request for a postponement would be granted. While it is correct that the matter has been listed on three occasions, it is not correct to say that the Applicant applied for an adjournment on each occasion."
We interpose to say the suggestion made in the decision that the Applicant applied for an adjournment on each occasion was not well-founded. The letter goes on:
"(iii) By recording that the Applicant had suffered no detriment as a result of the alleged discrimination, we meant that she was invited to the interview together with the other candidates and chose not to attend."

(iv) The position with regard to the costs hearing is set out above."

The Tribunal rather plaintively note:
"(v) We noted that the amount at issue was £132.19 and that the representatives on both sides were supported out of public funds."
As we have indicated, we accept that the decision rested on a basis which is not well-founded, namely the three applications for adjournments. However, if one looks at the paragraph to which the Tribunal make their conclusions in paragraph 3, it is quite clear that the Tribunal were of the view that the Respondents had done all that they could to rectify the situation and a reason for their decision, and this is one of the main thrusts of it, is that the Applicant, although added to the shortlist, had not even attended on that interview.We accept that the Applicant took the view that she would be prejudiced. We have a letter from the Respondent company which is their reply to the questionnaire in which they state the position:
"You will appreciate that the first decision not to shortlist you has not in any way prejudiced your prospect of being employed by BREC if you had attended the interview."
The result is this that even though there are inaccuracies in the way in which the matter was put, we can understand the sympathy of an Industrial Tribunal when faced with the fact that parties have suffered perfectly legitimate expense, with very limited and modest fee of a consultation in July, coming as it does to £132.19, from an Applicant who does not proceed with the application.In the case of E T Marler Ltd v Robertson [1974] ICR 72 at page 76 D, Sir Hugh Griffiths, in the National Industrial Relations Court, reviewed the type of conduct that will be regarded as frivolous or vexatious on the part of the Applicant, and he said this:
".... 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."
The position is that the 1993 Regulations have widened the scope as Mrs Nash has pointed out toward costs for unreasonable conduct. We have come to the view that this case, an order for costs, can be justified on the basis of frivolous conduct and an abuse of the procedure as defined in E T Marler Ltd v Robertson and we are of the view that certainly the wider test of unreasonableness in the 1993 Rules is satisfied as well.The essence, in our view, is this: this Applicant was shortlisted. She did not attend the interview. There must be many occasions in the experience of people in a wide diversity of occupations or leisure-time activities who go to the interview, selection conference or audition and entertain a fear that there is a favoured son or daughter. It would not be human nature if those fears did not enter people's minds. But if a person does not even attend, he or she cannot have the opportunity to test the fairness of the procedure.In those circumstances we consider the order for costs was within the ambit of the discretion of the Tribunal. The reality is the Respondents who have not appeared (they are no longer in existence) have been faced with a bill of costs, properly expended. We have checked on the timescale. If that bill of costs had been incurred before the position as far as an offer to the interview then the position would be different. But they were not.Mrs Nash has asked us for general guidance. We are sorry but where words of "reasonableness" are used it is beyond the scope to give any other than general guidance. We believe there is a widespread recognition in the legal system but the amount of its cost is not merely to be measured by the immediate costs of the parties paying legal fees, but also by the administrative and judicial manpower that makes Courts and Tribunals operate. In that money is spent on the legal profession and on the legal system from public funds it is a trite observation there is less public money that might be spent on other more justifiable claims. We cannot give any guidance for a particular case. All we can do is to note that we believe our legal system should operate in a way that it recognises there are other claims on the public purse.We thank Mrs Nash for her assistance and may we say that we are genuinely indebted to the way you have put this. We can understand the predicament in which her organisation found itself. Whilst we think, if we may say so, it is a considerable waste of public funds, that the sum of £132 should be litigated by a bill that runs into thousands of pounds, we understand the dilemma in which her organisation is placed and as we have made it clear, we make no criticism of her professional position. The appeal is dismissed.