Appeal No.	EAT/0859/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 November 2001

Before
HIS HONOUR JUDGE D PUGSLEY
MS N AMIN
MR D J HODGKINS CB

MR G EYITENE	APPELLANT

THE POST OFFICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS S ROBERTSON
Appearing under the 
Employment Law Appeal
Advice Scheme	

JUDGE D PUGSLEY
1.	This is a case where we have been persuaded by Miss Robertson that there is an arguable issue to go to the full Tribunal. The decision reads in these terms. 

“By Originating Application dated dated 11th November 2000 the Applicant claimed race discrimination. 

As recently as two days ago, the Respondent was entitled to believe that the matter would be hotly contested, having received a letter from the Commission of Racial Equality to that effect. The Commission was the third party whom the Applicant had approached for assistance. 

At 4:30 yesterday the Applicant indicated by faxed message to the Tribunal that he was withdrawing his Originating Application. The Respondent was advised on or about that time. 

The Applicant, who did not appear this morning, is still in full time employment with the Respondent. He had previously been advised that his application stood no reasonable chance of success and he was ordered to pay a deposit of £150, which he had already done. By the time that he notified his withdrawal, the Respondent had already briefed Counsel for today’s hearing. 

In the circumstances we order that the Applicant pays the sum of £500 as a contribution to the cost of the Respondent.” 

2.	We do not wish in any way to go beyond the limited role we have, namely whether arguable cases of law are identified. Under the Employment Tribunal Constitution Regulations, Schedule 1, Rule 12(7) says 

“(7)	Where -  
a party has been ordered under rule 7 to pay a deposit as a condition of being permitted to continue to participate in matters relating to a matter, 
in respect of that matter, the tribunal has found against that party in its decision, and
there has been no award of costs made against that party arising out of the proceedings on the matter, 
the tribunal shall consider whether to award costs against that party on the ground that he conducted the proceedings relating to the matter unreasonably in persisting in having the matter determined by a tribunal; but the tribunal shall not make an award of costs on that ground unless it has considered the document recording the order under rule 7 and is of the opinion that the reasons which caused the tribunal to find against the party in its decision were substantially the same as the reasons recorded in that document for considering that the contentions of the party had no reasonable prospect of success.” 

The issue here is whether or not Regulation 12(7) applies because it is argued that it does apply to a withdrawal where there is no determination that the Tribunal has found against that party in its decision. That may not be an accurate statement of the law. It could be said that when it is withdrawn, the Tribunal is finding against the party in its decision but we think there is a real argument as to whether 12(7) can apply to the requirement of paying a deposit. 

3.	As far as the other matter is concerned, Miss Robertson makes the point that it is not immediately clear why the Tribunal are of the view that Regulation 12(1) has been met. Namely has the party acted:-

“frivolously, vexatiously, abusively, disruptively or otherwise unreasonably” 

It may be that that is a conclusion to which the Tribunal could reach but we are concerned to note that the Appellant was not at the hearing. He says in his grounds of appeal that he was told he need not go. This is a matter where we think there are arguably errors of law in failing to particularise the way in which it was said the Appellant came within the ambit of rule 12(1) and the legal basis for any order made under 12(7).

4.	The Appellant has 21 days from this judgment to amend the grounds of appeal. This is a category C case with a time estimate of two hours. We make the usual order as to skeleton arguments.