OMAR IBRAHIM v ETHNIC MINORITY ENTERPRISE CENTRE & 4 OTHERS [2005] UKEAT 0073_04_1805

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0073_04_1805Case No Appeal No. UKEAT/0073/04Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
OMAR IBRAHIMAPPELLANTETHNIC MINORITY ENTERPRISE CENTRE & 4 OTHERSRESPONDENT
Before
Lady SmithDate 18 May 2005
[1]APPEARANCES For the Appellant Ms S Akhter, Solicitor Of- Messrs Harper Macleod Solicitors The Ca'd'oro 45 Gordon Street GLASGOW G1 3PE For the 1st & 5th Respondent For the 2nd Respondent For the 4th Respondent Mr I Meth, Representative Of- MENTOR 2 Stewart Drive GLASGOW G76 7EZ No Appearance Nor Representation No Appearance Nor Representation SUMMARY PRACTICE AND PROCEDURE Costs Case management Claim for disability discrimination and breach of contract. Preliminary hearing at which claimants' solicitors found liable in expenses and pre hearing review fixed under Rule 7 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001. Claimant appealed against both determinations. Employment Appeal Tribunal held that award of expenses against claimant's solicitor was incompetent but that the Employment Tribunal had not erred in determining that there should be a pre- hearing review. THE HONOURABLE LADY SMITH: This is the case of Omar Ibrahim against the Ethnic Minority Enterprise Centre and Others. It was about an application against five different respondents, seeking findings of disability discrimination and breach of contract. There was a preliminary hearing to determine the identity of the claimant's employer, following which an order was made, which in one part found the claimant's solicitor liable in expenses to the 4 th respondents, and, in another part, fixed a pre-hearing review under Rule 7 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001. The order dealt with certain other matters with which this appeal is not concerned. I will refer to parties as I go through my reasons as claimant and 1 st and 4 th respondents.[2]This is an appeal by the claimant against the decision of the Employment Tribunal sitting at Glasgow, Chairman, Mr D R Anderson, sitting alone, registered with extended reasons on 22 June 2004. The claimant was represented there by Mr A Middlecote, solicitor, and here, by Ms Akhter, solicitor. The 4 th respondents were represented there by Mr B Campbell, solicitor, but not represented here. The 1 st respondents were represented before me and before the Employment Tribunal, by Mr I S Meth. The 4 th respondents were not represented today, they having written to the Registrar by letter dated 13 October 2004, indicating that they no longer wished to insist on their opposition to the appeal. The Issues[3]Turning to the issues, the issue determined by the Employment Tribunal that is relevant to the purposes of the appeal against the expenses order, was that of whether or not to grant the 4 th respondents' motion for expenses, which was moved on the basis that the claim against the 4 th respondents was misconceived from the outset, since they were never conceivably within the description of an employer of the claimant.[4]The Employment Tribunal determined that after 13 January 2004, it should have been clear that the proceedings against the 4 th respondents should have been withdrawn. They were not withdrawn until April 2004, and the Employment Tribunal found that in those circumstances, expenses should be awarded against the claimant's solicitor for the period from just after 13 January 2004 to the end of April 2004.[5]The Employment Tribunal gave no consideration to the detailed terms of Rule 14 of the Employment Tribunals Rules of Procedure (Scotland) as contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 and, it is accordingly, not possible to ascertain which of the categories set out in subparagraph (1) they determined applied in this case. Nor is it possible to ascertain from the extended reasons how, notwithstanding that the Rule only empowers the Employment Tribunal to make an award of expenses against a party, it was felt it was possible to pronounce an order not against a party, but against a party's solicitor.[6]If confirmation were needed that it was not within the power of the Tribunal to do so, it can be obtained from a consideration of the authority of Omar v Worldwide News Inc [1998] IRLR 291 and also from the commentaries in the DTI Regulatory Impact Assessment: Wasted Costs , and the extract from Harvey on Industrial Relations and Employment Law Highlights June 2002 , that were put before me in the bundle of authorities provided. The latter two of these matters make it clear that, whilst Wasted Costs type orders were under contemplation so that they could be pronounced, not only against a party, but against a party's representative at the time the Tribunal were considering the matter in this case, it was not within their power to make such an order.[7]I have no hesitation in determining that the appeal against the expenses order succeeds. It was not competent of the Employment Tribunal to make an award of expenses against the claimant's solicitor. Further, they did not assess the case as following within one of the categories specified in Rule 14(1) and, without having done so, it was not open to them to make an order for expenses. It is not evident from the assessment set out in the extended reasons either that the circumstances of the case did fall within one of those categories, or that the Employment Tribunal, in fact considered that it did.[8]Turning then to the issue that arises in respect of the order fixing a pre-hearing review, the issue determined by the Employment Tribunal as relevant for this part of the appeal was that of whether there should be a pre-hearing review under and in terms of Rule 7 of the 2001 Regulations. The purpose of that review as stated in the order, being to consider the question of whether the claimant's case against the 1 st respondents had any reasonable prospect of success.[9]Such a hearing was sought on behalf of the 1 st respondents, and it is evident that arguments for and against the proposition that the case had no reasonable prospects of success, were outlined before the Employment Tribunal. I simply observe at this stage that the 1 st respondents' argument is not devoid of content, and it is clear that the Employment Tribunal did not think that it was.[10]In this matter the Employment Tribunal had a discretion. Rule 7(1) provides:
"that a Tribunal may at any time before the hearing of an Originating Application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review. And it then explains that a pre-hearing review will consist of the consideration of: (a) the contents of the originating application and notice of appearance; (b) any representations in writing; and (c) any oral argument advanced by or on behalf of a party."
[11]On behalf of the claimant, Ms Akhter submitted that the Tribunal should not have fixed a pre-hearing review in this case. She submitted that there was no proper basis for them to do so, and that they had failed properly to apply the terms of the Rules. She submitted that the purpose of the Rule was to enable the Tribunal to consider whether a case had any reasonable prospect of success and, whatever was the position regarding the case based on dismissal, the claimant would have a surviving case in respect of warnings and failures to make reasonable adjustments.[12]On behalf of the 1 st respondents, Mr Meth repeated very much the outline of the 1 st respondents' argument that is referred to by the Employment Tribunal in paragraph 3 of their reasons, in respect that Ms Akhter had submitted that it was not reasonable to fix a pre-hearing review in this case, given that that would cause delay and expense. Mr Meth indicated that she was premature in her argument and, all the Tribunal had said here was that there was simply a case for a pre-hearing review. Delay and expense would be inevitable in any case where a pre-hearing review takes place.[13]I have to consider what the test is for the Employment Appeal Tribunal to be able to interfere with a decision by an Employment Tribunal that there should be a pre-hearing review. The Tribunal has a wide discretion when fixing such a review, and I agree, therefore, with the submission advanced by Mr Meth that they would have had to have acted perversely in so doing before this Tribunal could interfere with this decision.[14]I do not see that they did so. I recognise the concern expressed on behalf of the claimant that there will be further delay and, possibly further expense but, that is the inevitable result of any pre-hearing review and is liable to impact on both parties. I do not see that those factors are such as to indicate that in this case the Employment Tribunal acted perversely in fixing the pre-hearing review that they did.[15]The second part of today's appeal is accordingly dismissed.