THE INDUSTRIAL TRIBUNALS

CASE REF:	1486/05

CLAIMANT:			Carol Catterson

RESPONDENTS:		1.	Board of Governors Omagh High School
				2.	Western Education and Library Board

DECISION
The unanimous decision of the tribunal is that the respondents application for costs is dismissed.

Constitution of Tribunal:
Chairman:		Mr Greene
Members:		Mr Lyttle
			Mr Kearns

Appearances:
The claimant was represented by Mr Colhoun, Solicitor, of Andrew T Armstrong & Company, Solicitors.
The respondents were represented by Miss F Lamont, Barrister-at-Law, instructed by Education & Library Board’s Legal Service.

1.	In this application the claimant brought a claim for unfair dismissal.  The application was heard on 11 May, 12 and 13 September 2006.  

2.	The industrial tribunal dismissed the claimant’s claim in a decision issued on 5 December 2006.

3.	This matter came back before the tribunal on the 21 February 2006 to consider an application for costs on behalf of the respondents.

4.	This application for costs was under Regulation 40 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

5.	The respondents contended that in bringing and conducting the proceedings the claimant acted unreasonably or that in bringing the proceedings the claimant’s actions have been misconceived.

6.	The respondents claimed costs for solicitor and counsel for three days which it valued at £2,500.

7.	In support of the respondent’s claim for costs Miss Lamont stated:-

(a)	In considering an application for costs on the ground that the claimant has acted unreasonably a tribunal must bear in mind that reasonableness is an objective test and it is not satisfied by the genuineness of the claimant’s belief. (Montgomery  v  McBain & Others 759/03)

(b)	The proceedings were misconceived in that the proceedings did not have a reasonable prospect of success.  

(c)	There was a clear redundancy situation at Omagh High School; the respondents consulted with the unions; the first-named respondent tried to avoid making the redundancies; the criteria used for selection  were made known to the trade unions and none of them objected; the selection of the claimant was made using the selection criteria; the claimant chose not to avail of the consultation offered before the redundancies were made; the claimant was informed of her redundancy and right of appeal which she chose not to exercise within the appeal period.

(d)	The claimant took up other employment thereafter.

(e)	It was not until November 2005 that the claimant lodged an appeal against her redundancy.

(f)	Mr Quigley was doing some work formerly done by the claimant until he abandoned his own appeal against redundancy and his employment terminated. 

(g)	Between the time the claimant learned that Mr Quigley was doing her work and the launching of her proceedings the claimant should have written to the respondents to enquire why he was still working at Omagh High School.

(h)	Before the hearing began on 12 May 2006 the claimant was provided with discovery of documents which would have revealed that the respondents were obliged to keep Mr Quigley in work until his appeal was exhausted and the claimant should have concluded that that was the reason why he continued to work at Omagh High School.

(i)	The claimant could not have believed that Mr Quigley was doing her work when she got the discovered documents.

(j)	The claimant should have been aware that it was unreasonable to continue her claim after she met with representatives from the            first-named respondent’s Board of Governors on 18 November 2005.

(k)	The claimant should have been aware that it was unreasonable to continue with her claim on the first day of hearing.

(l)	The respondents put the claimant on notice of an application for costs in their letter of 26 January 2006.

(m)	The claimant is working in Omagh Academy where she earns £329.49 per month.

8.	Mr Colhoun, for the claimant contended:-

(a)	There were relevant issues to be raised on behalf of the claimant viz the composition of the redundancy pool and the exclusion of temporary staff from the pool for selection.

(b)	Discovery showed that some non-teaching staff were excluded from the pool for redundancy as funding came from another source; 

(c)	Some issues only became clear during the hearing.

(d)	Initially the claimant did not challenge her redundancy as she accepted what the respondents had told her.

(e)	Mr Quigley continued to do some of the duties previously done by the claimant.

(f)	Some of the claimant’s former duties had been transferred to a caretaker who was on a temporary contract.  The claimant could possibly have carried out the temporary caretaker’s duties.

(g)	Classroom assistants were excluded from the redundancy process.

(h)	The redundancy was not handled in the most communicative or diplomatic manner.

(i)	The claimant was unaware why Mr Quigley withdrew his appeal against redundancy.

(j)	Although the respondents’ legal representative wrote to the claimant’s representative on 26 January 2006 stating that the proceedings brought by the claimant were unfounded and to continue them was unreasonable and an abuse of the tribunal system neither respondent applied to have the proceedings dismissed or either respondent dismissed from the proceedings and indeed an officer of the second-named respondent gave evidence on behalf of the respondents.

(k)	The respondents never set out in writing prior to the hearing that in their view the proceedings were hopeless or misconceived.

(l)	The temporary caretaker was doing some of the duties previously done by the claimant and no consideration was given to the claimant doing the caretaking duties.

(m)	The claimant saw a temporary member of staff retained while she was made redundant.

9.	Having considered the matter the tribunal refused to award costs against the claimant.  In so concluding the tribunal had regard to the following matters:-

(a)	The respondents rely on two grounds to justify an award of costs against the claimant, ie that in bringing and continuing the proceedings the claimant acted unreasonably and that the proceedings were misconceived.
 
(b)	When the claimant lodged her claim on 3 November 2005, Mr Quigley was still working at Omagh High School despite having been selected for redundancy at the same time as the claimant.  It was therefore not unreasonable for her to bring her claim.

(c)	By the time the claimant would have been aware of the respondents’ response around 9 December 2005 it was reasonable for the claimant to continue with the claim as the outcome of Mr Quigley’s appeal had not been set out in the response.

(d)	It was not unreasonable for the claimant to continue with her claim up to the commencement of the hearing as although a possible explanation had appeared in the discovered documents as to why Mr Quigley had been doing the claimant’s duties the claimant is not obliged to accept that explanation and is entitled to challenge it.

(e)	At the hearing other issues emerged concerning the temporary caretaker who had been recruited after the claimant and the exclusion from consideration for redundancy of some non-teaching staff and it was therefore not unreasonable for the claimant to continue her claim.

(f)	It is clear from the claimant’s Replies to the respondents’ Notice for Particulars that the claimant was challenging, inter alia, the genuineness of the redundancy.

(g)	The claimant had grounds on which she could continue her claim in addition to her subjective belief that her redundancy was unfair. 

(h)	The Montgomery decision decided that a subjective belief in the genuineness of a claim on its own was insufficient to justify continuation of a claim but in the instant case there were other factors in addition to the claimant’s belief in the genuineness of her claim. 

(i)	It could not be said that the claimant’s claim had no prospect of success and thus in launching the proceedings the claimant’s actions were not misconceived.  

Chairman:

Date and place of hearing:	21 February 2007, Strabane 

Date decision recorded in register and issued to parties: