MISS D BOYLE v (1) EUROSTAR (UK) LTD (2) MRS H SULLY [2002] UKEAT 1487_01_1410

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1487_01_1410Case No Appeal No. EAT/1487/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS D BOYLEAPPELLANT(1) EUROSTAR (UK) LTD (2) MRS H SULLYRESPONDENT
Before
His Honour Judge Peter Clark Mrs R Chapman Mr C EdwardsDate 14 October 2002
[1]APPEARANCES For the Appellant MR T KIBLING Appearing under the Employment Law Appeal Advice Scheme HIS HONOUR JUDGE PETER CLARK In this case the Applicant complained to the Employment Tribunal of unfair constructive dismissal, unlawful racial discrimination against the Respondents, Eurostar (UK) Ltd and Mrs Sully, and breach of contract, the first and last complaints being against her former employer Eurostar only.[2]Following a five day hearing during October 2001, a Tribunal sitting at London Central under the Chairmanship of Miss A M Lewzey dismissed all complaints by a decision with Extended Reasons dated 2 November 2001. In addition, they made costs orders in the sum of £1000 in favour of both Respondents against the Applicant.[3]Against that decision Miss Boyle now appeals. On her behalf today, Mr Kibling, appearing under the ELAAS pro bono scheme, takes three points. First, he submits that the Tribunal failed to make any formal decision on an application by the Appellant at the commencement of the first day of hearing on 17 October 2001 for an adjournment. It appears from a note taken by the solicitor in attendance on behalf of First Respondent (Eurostar) that day that the Appellant did ask for an adjournment on the basis that her trade union, the RMT, had told her as recently as the preceding Friday that they would not represent her. As to that point, it seems that there was a letter on the Tribunal file dated 28 March 2001 in which that trade union had indicated they would not be representing the Appellant, although it seems that thereafter she made a further application to the union for representation which also failed. Secondly, there was before the Tribunal a letter from the Commission for Racial Equality dated 15 October 2001 asking for an adjournment in relation to amendment to the witness statement of the Second Respondent which had been served on the Appellant on 11 October 2001.[4]Interlocutory matters, particularly applications for adjournment, are dealt with within the wide discretion granted to Employment Tribunals to manage their cases. It seems to us that the Tribunal had in mind the Applicant's disadvantage in being unrepresented and the circumstances in which that arose. We can see no error of law in the Tribunal proceeding with this case with the Appellant unrepresented and with the witness statements in the state in which they were at the relevant time. In these circumstances we reject the first ground of appeal.[5]Secondly, it is submitted that the Tribunal made a material finding of fact which was unsupported by, indeed contrary to, the evidence in the case. In particular at paragraph 70 of their reasons when dealing with the claim of race discrimination under the second Originating Application the Tribunal say this:
"Miss Boyle has put forward no evidence that a white person would have been treated differently in the circumstances of her dismissal. She has not named any comparator and she has not put forward any evidence from which the Tribunal can infer that her dismissal was because of her race. Miss Boyle has not shown that, in a similar incident of insubordination, a white person would not have been dismissed."
Mr Kibling has taken us to the Appellant's witness statement and in particular paragraphs 23 to 27 of that statement. Having considered that evidence we are satisfied that it does not bear on the question of comparison between the treatment meted out to the Appellant by way of dismissal and any other actual or hypothetical comparator. Since the issue in relation to this part of the case is clearly set out at paragraph 3.2 of the Tribunal's reasons, that is, whether the First Respondent unlawfully discriminated against the Applicant by disciplining her and/or dismissing her, it seems to us that the finding at paragraph 70 was patently correct. Accordingly, that ground of appeal fails also.[6]Finally, there is a challenge to the costs order made in this case. It is clear that the costs incurred by both the First and Second Respondents exceeded the sum of £10,000, the maximum for assessed costs under the 2001 Rules. As to whether it was a case in which the Tribunal's powers under Rule 14(1) were triggered, they set out their findings at paragraph 76 of their reasons, which led them to conclude that the Appellant acted in a vexatious and unreasonable manner in the bringing and conducting of these proceedings for the purpose of Rule 14(1). It seems to us that those are permissible findings which allow the Tribunal to make an order for costs under Rule 14(1). Finally, they go on to say that they have taken into account Miss Boyle's means and in those circumstances restricted the order for costs to the sum of £1,000 in favour of each of the two Respondents.[7]We are not persuaded that any error of law is made out, even arguably, so far as the Appellant is concerned. However, we raised with Mr Kibling, and he was well aware of, the Court of Appeal decision in Kovacs v Queen Mary and Westfield College [2002] IRLR 414 . On the face of it the Tribunal, following the then accepted practice, took into account the Appellant's means when they were irrelevant to the award of costs. In these circumstances we reject this final ground of appeal, conscious that were we to allow it through, the Appellant may be faced with a cross-appeal based on Kovacs which could lead to her facing an increased rather than decreased bill for costs.[8]In these circumstances we shall dismiss this appeal.