THE INDUSTRIAL TRIBUNALS

CASE REF:	890/15

CLAIMANT:			Michelle Black

RESPONDENT:		Runwood Homes Limited

DECISION ON COSTS
The decision of the tribunal, as set out at Paragraph 7 below, is that the claimant do pay to the respondent the sum of £500.00 in respects of costs incurred by the latter in defending these proceedings.

The claimant, in bringing and conducting these proceedings, has acted unreasonably, and the bringing and conducting of these proceedings by the claimant has been misconceived.

No Order is made against the claimant’s representative.

Constitution of Tribunal:
Employment Judge (sitting alone):	Employment Judge D Buchanan
Appearances:
Neither the claimant, nor her representative on record, appeared at the hearing.  The latter submitted written submissions on their behalf.
The respondent company was represented by Ms L Clarke, Barrister-at-Law, instructed by Paul Robinson LLP, Solicitors.

1(i)	This matter was listed for hearing on the application of the respondent company which sought on Order for Costs against the claimant, Mrs Black, and a Wasted Costs Order against her representative, Mr Aidan Hanna.  Mr Hanna had been the claimant’s representative throughout the proceedings and, indeed, had signed the claim form on her behalf.

 (ii)	The basis for the application was that the claimant and her representative had, in bringing and conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably and that the bringing and conducting of the proceedings had been misconceived.  (See : The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, and, in particular, Rules 38, 40 and 48.)

(iii)	In order to determine this matter I had regard to the very able, thorough and helpful submissions of Ms Clarke BL, counsel for the respondent company, and to the written representations lodged by Mr Hanna, the claimant’s representative  Neither Mr Hanna nor the claimant attended the hearing.

2(i)	The claimant, by a claim form presented to the tribunal on 30 April 2015, made claims against the respondent company of unfair dismissal, disability discrimination, and breach of contract (relating to alleged arrears of pay of £243.00).

 (ii)	As the claim included an allegation of discrimination, it was listed for a Case Management Discussion in accordance with the practice of the tribunals.  That Case Management Discussion was listed for hearing at 2.00 pm on 4 August 2015.  The claimant and her representative were given notice of this hearing on 24 June 2015.

(iii)	At around 11.00 am on the former date, Mr Hanna, the claimant’s representative,  e-mailed the Office of the Tribunals withdrawing the claim.  He stated in that e-mail that he had advised Michelle Black that her claim had no reasonable prospect of success, and in this regard made particular reference to the fact that she had only been employed for three months by the respondent company.

(iv)	This correspondence was placed before me and I dismissed Mrs Black’s claim following its withdrawal.  The Case Management Discussion was taken from that afternoon’s list and later that day a decision was issued to the parties dismissing the claims.

3	The following facts are, to my mind, relevant in considering this application:-

(i)	The claimant started work with the respondent on 7 November 2014 and was dismissed for gross misconduct on 23 January 2015.  As stated, her claim was presented on 30 April 2015.  She did not therefore satisfy the qualifying period for an unfair dismissal claim, and the claim was presented outside the time-limit for bringing such a complaint.

(ii)	Leaving aside the jurisdictional issues, the misconduct for which the claimant was dismissed was that she had deliberately omitted details of a former employer (against whom she had brought proceedings) on her claim form.

	It seems likely, therefore, that her dismissal would have been held to be a fair one, or, at the very least, had she succeeded in her claim, it would have been held that she had contributed to her dismissal and any compensation awarded substantially reduced, or extinguished.

(iii)	In relation to the claim in respect of disability discrimination, the claimant alleged that she suffered from dyslexia.

	While there is a dispute between the parties as to whether or not the claimant made it known to the employer that she suffered from dyslexia, it is clear from a grievance that she submitted on 26 March 2015 that she made no reference to dyslexia.  This is more consistent with the respondent’s claim that she first made reference to dyslexia in her claim form to the tribunal.

	It is hard to avoid the suspicion that the claimant did this to bring within the tribunal’s jurisdiction a claim which it could not otherwise have heard, particularly when the claim form does not set out any facts which would show a link between her alleged disability and the treatment of which she complains.

(iv)	In relation to the alleged arrears of pay, the respondent company denied that any money was owing.

4(i)	The respondent company submitted its response to the tribunal on 8 June 2015 and on the same date its solicitors wrote to Mr Hanna, the claimant’s representative.  In that letter the facts set out at Paragraph 3 above were referred to and the claimant was warned that if the case proceeded an application for costs would be made on the grounds that she had acted vexatiously, abusively and disruptively in bringing the proceedings, and that they had no prospect of success.  She was asked to withdraw the proceedings immediately.

(ii)	As indicated above, the claimant did not withdraw the claim until the morning of the hearing on 4 August 2015.  In the meantime (on 6 July 2015) the respondent company’s solicitor had briefed counsel to attend the Case Management Discussion, and she received the full papers in the matter, running to around 100 pages, on 29 July 2015.  

(iii)	The respondent company, in defending this claim, incurred costs of £2,990.00, inclusive of VAT and counsel’s fees.

5(i)	In determining this application, I bear in mind that the award of costs by an industrial tribunal is the exception rather than the rule.  I also take into account that both the claimant and her representative are lay persons, though this does not give them an immunity from costs.  (See : AQ Ltd  v  Holden [2012] IRLR 648.)

	In Peifer  v  Castlederg High School and the Western Education and Library Board [2008] NICA 49, a case involving a litigant-in-person, Girvan LJ stated at Paragraph 3 of the decision:-

“”Tribunals should be encouraged to use their increased costs powers ... to penalise time-wasting or the pursuit of cases in a way which unduly and unfairly increases the costs falling on opponents.”

 (ii)	More generally, I approach this matter by, firstly, determining whether there has been unreasonable, etc conduct, and if so, then exercising my discretion to make an award against either or both the claimant or her representative, and in what amount or amounts.

6	The relevant legislative provisions are set out in the Rules of Procedure referred to at Paragraph 1(i) above, and I have also had regard to Harvey on Industrial Relations and Employment Law, Division P1, Section ZB and the authorities there cited, particularly at Paragraph 1063, 1064, 1078 and 1101.  I do not consider it necessary to set these out in detail.

7(i)	I am entirely satisfied that the claimant in the bringing and conducting of these proceedings has acted unreasonably, and that the bringing of these proceedings has been misconceived.

	I refer again to the facts which I set out at Paragraph 3 above and, in particular, to the fact that the proceedings were withdrawn three hours before the start of the Case Management Discussion on 4 August 2015.  This belated withdrawal came almost two months after the costs warning letter had been issued to the claimant and her representative.

 (ii)	In these circumstances, I consider that an award of costs is appropriate and order that the claimant do pay to the respondent company the sum of £500.00 in respect of costs incurred by the latter.

	In making an award in this amount, I have had regard to such information as is available to me in relation to the claimant’s means.

8	I make no award against the representative, Mr Hanna.  The wasted costs jurisdiction should only be exercised with great caution and as a last resort.

	It is not clear whether or not Mr Hanna was acting in pursuit of profit with regard to the proceedings.  (See : Rule 48(4).)

	While he apparently assisted in drafting the claim, signed it on the claimant’s behalf, and ultimately advised her to withdraw it, I do not know what instructions he received from the claimant or what detailed advice was given to her by him, and at what stage it was given.

Employment Judge

Date and place of hearing:	29 October 2015, at Belfast

Date decision recorded in register and issued to parties: