THE INDUSTRIAL TRIBUNALS

CASE REF:	1695/03

CLAIMANT:		Carol Ferguson

RESPONDENT:		South Eastern Education & Library Board

DECISION
The unanimous decision of the tribunal is that the respondent’s application for costs be dismissed.

Constitution of Tribunal:
Chairman:		Mr M Davey

Members:		Mr R Robinson
			Dr V Eakin

Appearances:
The claimant was represented by Mr N Black, Solicitor, of McCartan Turkington Breen, Solicitors.
The respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by the Solicitor for the Education & Library Boards.

Reasons

1.	Following the tribunal’s decision dismissing the claimant’s complaint of unfair dismissal the respondent sought to make an application for costs.  In prior correspondence with the claimant’s representatives the Board suggested that the basis of such claim was that the proceedings had been conducted unreasonably or, if one referred to another letter, to the proceedings being frivolous, vexatious and wholly without merit.  However, before the tribunal the ground for the application was stated to be that the proceedings were misconceived.  The issues for the tribunal were to determine which Rules governed the awarding of costs in proceedings such as the present proceedings, whether the claimant’s conduct fell within that described in the Rules as justifying the possible award of costs and, if so, whether a Costs Order should be made against the claimant.

The Relevant Rules

2.	As regards the Rules it appeared to the tribunal that, according to the transitional provisions contained in Regulation 15 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, the provisions of the old Regulations (the 2004 Rules) continued to apply.  Examination of the 2004 Rules confirmed that, although the proceedings in question had been commenced prior to 4 April 2004 when the 2004 Rules came into force, the 2004 Rules were applied to all proceedings, regardless of when they commenced, which were extant at the time.  The provisions of the 2004 Rules as regards costs, Rule 14, provide that:-

“A tribunal shall consider making and if it so decides may make Orders for Costs where a party has in bringing the proceedings, or a party or a party’s representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or a party’s action in bringing the proceedings have been misconceived …”

The Board’s Submissions

3.	It was submitted on behalf of the Board that, as is recorded in the decision, the claimant was offered numerous opportunities in the run-up to her dismissal to appeal the decision to dismiss or to submit medical evidence as she wished.  Despite numerous requests she failed to do so and her trade union indicated that she would not be attending the medical examination arranged for her, although they did suggest that she would attend ‘at an appropriate time’.  No medical evidence was ever submitted to the Board that she was unfit to attend and accordingly the decision to dismiss was taken.  The Board’s submission was that in those circumstances the application was effectively misconceived.  It was suggested that proceedings, to be misconceived, had to be regarded as having no reasonable prospect of success.  In the respondent’s submission that clearly applied in the circumstances of this case.  In considering whether or not the bringing of the proceedings was misconceived the tribunal should consider the stance adopted by the claimant in the run-up to the dismissal, or by her trade union on her behalf, which, in the respondent’s submission, was patently unreasonable.  Pre-dismissal behaviour could assist the tribunal in determining whether or not there was a reasonable prospect of success.

The Claimant’s Submissions

4.	For the claimant it was submitted that in an unfair dismissal complaint such as this, where it was clear that there had been a dismissal, where the claimant had been employed for a significant period with a good record, and where the employee had been dismissed following a comparatively brief period of absence, there was at least the foundation of a prima facie application where the employee believed, as the claimant did in this case, that other employees had not been treated in a similar way.  It also had to be remembered that in such cases much evidence was available for the employer which did not become available to the employee until the interlocutory stages or the hearing itself.  In this regard it was suggested for the Board that the relevant correspondence, revolving around the failure or refusal of the claimant to attend at the appeal hearing/examination, was available to the claimant throughout.  

The Tribunal’s Analysis

5.	The starting point for the tribunal must be that, in the ordinary way, a claimant should be entitled to bring an unfair dismissal claim to the tribunal without fear of being penalised in costs.  So much can be inferred from the vocabulary used in Rule 14(1) of the 2004 Rules (and, indeed, in its succeeding Rule, Rule 40(3) of the 2005 Rules) which describes the circumstances in which Costs Orders may be made in extreme terms.  In this case the application is on the basis that the bringing of the proceedings by the claimant was misconceived.  Harvey defines this as having no reasonable prospect of success.  In the tribunal’s view this goes beyond the situation in which the possibility, or even the likelihood, of losing is recognised.  It is a situation beyond that in which a reasonable man might hesitate before bringing proceedings.  In the tribunal’s view, and this is reinforced by the nature of the language used, it involves a situation in which a reasonable man would recognise that, in colloquial terms, he had no chance.

The Tribunal’s Conclusions

6.	The tribunal does not consider that that can be said in this case.  There were a number of areas in which the tribunal had to make findings that, in accordance with the legislation, the actions of the respondent had been reasonable.  There was a question as to whether the respondent’s original proposal to dismiss the claimant on health grounds was a reasonable reaction to the report which it had received; there was a question as to whether it was reasonable for the Board to expect the claimant to attend medical examinations given the objections which she had raised; there was a question as to whether the Board should have been aware or should have inferred that the claimant was unfit to attend a further medical examination; there was a question as to whether the offer of future examination by the claimant should have been taken up; and finally, there was a question as to whether, at the end of the day, the Board’s decision to dismiss was a reasonable one.  It is true that all these questions were resolved in favour of the Board but that is a far cry from saying that they were always bound to be or that no other finding was in any way likely or even possible.  In the tribunal’s view the circumstances were not such as to displace what it regards as the norm that claimants should be entitled to bring claims without being penalised in costs.  

7.	It was suggested on the part of the respondent that the behaviour of the claimant and her trade union advisers in the run-up to the dismissal was unreasonable and that that behaviour should form the tribunal’s view of the prospects of the actual claim.  The tribunal is not convinced that this logically follows.  The claimant was certainly trying at least to delay the examination.  She believed she had a good reason for so wishing.  She was certainly being advised not to attend for examination.  Her actions may have been unwise; her reasons may not have been satisfactorily communicated; the advice may not have been good, it may even have been ill-intentioned; the claimant’s behaviour and/or that of the union may have been unreasonable.  Even if all this was so, and the tribunal makes no such finding, it does not follow that the dismissal was necessarily fair or that the rectitude of the respondent’s procedure could not be tested.  Furthermore, even if these actions were unreasonable they would not, of themselves, justify the making of a costs order against the claimant since all of this occurred prior to the dismissal and prior to the bringing of the proceedings and it is behaviour in the bringing or conducting of proceedings which is relevant.  It may be that in some circumstances prior unreasonable behaviour by a claimant or a claimant’s representative would give a clear signpost as to whether or not proceedings for unfair dismissal could reasonably be brought but not, in the tribunal’s view, in the circumstances of this case.  As has already been stated, the tribunal does not regard the proceedings as misconceived, nor does it regard them as having been brought vexatiously or unreasonably.

Chairman:

Date and place of hearing:		28 June 2006, Belfast

Date decision recorded in register and issued to parties: