MR JABRAN SONI MR S A SONI THE VOCATIONAL TRAINING COLLEGE v MISS SAMERINA KHAN [2001] UKEAT 1309_01_0312

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1309_01_0312Case No Appeal No. EAT/1309/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR JABRAN SONI MR S A SONI THE VOCATIONAL TRAINING COLLEGEAPPELLANTMISS SAMERINA KHANRESPONDENT
Before
His Honour Judge D Pugsley Mrs A GallicoLord Gladwin of CleeDate 3 December 2001
[1]APPEARANCES For the Appellants MR ZACHARIAS MIAH (of Counsel) Instructed By: Messrs Aziz Saunders Solicitors 4th Floor Hilton House 26-28 Hilton Street Manchester M1 2EH JUDGE D PUGSLEY : This is a preliminary hearing in which the Appellants seek to appeal an order of the Employment Tribunal on 16 July 2001.[2]We are grateful to Mr Miah who has set out a chronology which is to this effect. An Originating Application on 21 February 2001 was served that alleged against the Appellants to this appeal, the Respondent before the Tribunal, an argument that the Respondents had been guilty of sexual harassment.[3]The matter was adjourned by the Employment Tribunal so there could be a Crown Court trial. There was a Crown Court trial against one of the Respondents. He was acquitted. We are told that the solicitor appearing for the defendant in the criminal trial also appears for the Respondents. He was before the Employment Tribunal. The case was stopped on 11 July 2001. We are told that the Crown Court judge himself, allowed submissions of "no case to answer", directed the jury to return a verdict of "not guilty" and that the judge ordered enquiries as to the allegations that had been made. We ought to say that we do not feel that we should comment in any other way; we have just been told that.[4]The Applicants' solicitors contacted solicitors acting for the defendant in the criminal trial, the Respondent before the Employment Tribunal.[5]On 13 July a message was received by the Respondent's solicitors that they should contact the Appellants' solicitors and just before the close of the working week they were told that the Respondent was going to withdraw the case at the Tribunal hearing on Monday, the 16 th . The Appellants' solicitors were unable to contact the client. The case came before the Employment Tribunal. The application was withdrawn. An order was sought for costs and no costs were ordered.[6]What is said in the ground of appeal, and is an error of fact in that the decision makes reference to a private settlement (We are not quite sure what that private settlement means because it is clear from the papers that the application was simply dismissed on withdrawal). It is said that the Tribunal erred in law in concluding it did not consider it reasonable for the Respondents' representative not to have intimated there will be a costs application on Friday 13 July and if the Applicant's representative had been aware of the situation he would have been able to consider the possibility of having the Applicant present. It would have afforded the Applicant a proper opportunity to answer the allegations. It is common ground that the Regulations which had then come into force (and we are grateful to Mr Miah for his noting this and the Tribunal noted it) was the Employment Tribunal (Constitution Regulations) 2001 , paragraph 14(1) says:
"Where in the opinion of the tribunal a party has in bringing the proceedings or a party or parties' representative has in conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably or the bringing or conducing of the parties has been misconceived the tribunal shall consider making an order and if so decides may make an order awarding costs."
[7]This is a difficult issue because it could be said that the Tribunal should have gone into far greater detail, should have adjourned the case for the Applicant to be at the Tribunal and should have allowed the Respondents to put to her that her allegations were in fact totally and utterly baseless and misconceived. That would have taken a very long period of time. It would have raised issues that may arise between the difference of the civil standard of proof and the criminal standard of proof.[8]We have looked at it in the round. We have got to find what is arguably an error of law. We have got to say that this Tribunal erred in such a way that no reasonable Tribunal exercising its discretion would have done so in this way. We have considered very carefully the arguments that have been put to us by Mr Miah and he has put them very well but, at the end of the day, this is a matter of discretion for the Tribunal. We can find no flaw in their reasoning that leads us to say we can identify an error of law. We say this because we have considered this carefully. We have considerable sympathy for the position in which the Respondents are, quite irrespective of costs, if we may say so, to be the subject matter of a complaint of this sort. It must be extremely depressing and extremely disturbing and very worrying and be a cloud over the horizon for quite some time.[9]At the end of the day, we do not consider that there is anything we can say that the Tribunal has erred in law, or arguably erred in law, to such a prospect of success that would justify this case going for a full Tribunal. It was a matter for the discretion of the Employment Tribunal.