MR B SAKA v FITZROY ROBINSON LTD [2000] UKEAT 241_00_1606

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 241_00_1606Case No Appeal No. EAT/241/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B SAKAAPPELLANTFITZROY ROBINSON LTDRESPONDENT
Before
His Honour Judge J Altman Mr D A C Lambert Mr B M WarmanDate 16 June 2000
[1]APPEARANCES For the Appellant MR I WILSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE J ALTMAN : This is an appeal from a Decision of the Employment Tribunal sitting at London (North) on 18 January 2000, whereby they found that a previously heard application alleging race discrimination had been brought by the Appellant frivolously, vexatiously and otherwise unreasonably, so as to lead them to make an Order as to costs to be assessed on County Court Scale 2. That Order, if it stands, will need translation into civil procedural terminology for costs. We are enormously indebted to Mr Wilson, who has argued on this preliminary hearing the case under the ELAAS scheme on behalf of the Appellant. The matter comes before us on a preliminary hearing to determine if there is a point of law properly arguable in full before the Employment Appeal Tribunal.[2]The Appellant began his employment on 7 December 1998. He was dismissed on 1 February 1999 in the midst of a three-month probationary period. The Respondents said it was because of his conduct and a lack of capability. The Appellant says it was because he was discriminated against on the ground of his race.[3]The matter was considered at the interlocutory stage, before the first Tribunal hearing, by means of an Order for the provision of Further and Better Particulars in which incidents were alleged from which it was effectively suggested that inferences should be drawn. There was an application to strike-out before the hearing which was dismissed. No costs warning was given on that occasion.[4]On 13 and 14 July 1999 the Employment Tribunal heard the application alleging race discrimination and dismissed the application in a reserved judgment promulgated on 4 August 1999.[5]On 24 August the Respondents applied for costs on the ground that the application had been brought frivolously, vexatiously and otherwise unreasonably. We understand that the Appellant had not received prior notification of such application.[6]At a hearing held on 18 January 2000 the Order for costs was made which is now subject to this appeal. The Appellant did not attend the hearing and sought a review thereafter, but in a carefully reasoned Decision the Employment Tribunal dismissed the application for a review. The ground of appeal does not complain about the Tribunal's proceeding to deal with the costs application in the Appellant's absence but the argument is that there was an error of law on the face of the decision, notably in paragraph 7, coloured no doubt by the findings and references in paragraph 6. The reasons given were these:
"7 … As has been stated, [the Appellant] could give no comparator who had been treated more favourably than he had been treated by the present Respondent. There was no cogent evidence as to why he considered that he had been dismissed because of his ethnic origin. We heard evidence regarding Mr Saka's conduct during the course of his employment and we had no hesitation in finding that he was dismissed because of the problems that the Respondent experienced due to his conduct."
[7]It seems to us that there is an arguable point of law that, there having been no successful strike-out of proceedings, and where there was no striking-out at a specific hearing held before the main hearing to consider whether to do so, and where no "costs warning" was given under Regulation 7 of the Employment Tribunals (Constitution and Rules of Procedure)Regulations 1993, the Employment Tribunal erred in law in their interpretation of the way in which the evidence was given at the hearing itself so as to conclude that it was capable of being frivolous, vexatious or otherwise unreasonable. This appeal will be listed to consider that single issue for half a day, listed in Category C, skeleton arguments to be furnished not less than 14 days before the hearing.