Appeal No. UKEATS/0042/05/RN

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 25 November 2005

Before
THE HONOURABLE LADY SMITH
MR M R SIBBALD
DR W M SPEIRS

ALLAN McKECHNIE OLIVER	APPELLANT

JOHN R WEIR LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

SUMMARY

The appellant was unsuccessful in his appeal. The respondents lodged an application for an award of expenses under and in terms of Rule 34 and 34A of the Employment Appeal Tribunal Rules 1993.  Parties were agreed that the application should be determined on the basis of written submissions.  The Employment Appeal Tribunal determined that it should not exercise its discretion to award expenses.  It could not be said that the appeal was unnecessary or misconceived. 

THE HONOURABLE LADY SMITH

Introduction
1.	Following a full hearing in this case, we pronounced an order dismissing the claimant’s appeal in this case on 19 January 2006. We would refer to our judgment, issued on that date, for the facts of the case and the decision in the appeal.

2.	By letter dated 23 January 2006 the respondents’ agents intimated that they were seeking an award of expenses on the basis that the appeal was unnecessary and misconceived. Parties agreed that the matter should be determined on the basis of written submissions.

Case for the respondents
3.	At the heart of the respondents’ argument is the submission that the claimant’s appeal was bound to fail because he was seeking to interfere with the tribunal’s findings in fact. They also draw attention to the fact that they had, in their response to the appeal, warned that they were reserving their position regarding expenses.  They seek an award of a sum in the order of £4,000. 

Case for the claimant 

4.	The claimant’s written submission contains something of a re- run of the argument and, to an extent, a development of it. However, what is relevant to the expenses issue is that he asserts that the appeal was not misconceived because he sought to argue that the facts found by the tribunal should be seen as having amounted to evidence of definite orders as regards stoppage of payment of employees’ private fuel costs. 

Discussion and Decision 
5.	Under and in terms of Rule 34A of the 1993 Rules we have a discretion to make an award of expenses if we are satisfied that the appeal appeared to be unnecessary, improper, vexatious or misconceived.  The discretion exists against a background of a practice whereby the awarding of expenses is not the rule and there being no rule in the Employment Appeal Tribunal that expenses follows success. 

6.	We have taken careful consideration of the arguments advanced but have reached the view that the exercise of our discretion does not arise since it cannot be said that the appeal was unnecessary or misconceived.  As regards the former, the respondents’ written argument says little if anything in support of it. The emphasis is on the allegedly misconceived nature of the appeal.  So far as that is concerned, we do not agree with the respondents’ approach. The essence of the claimant’s appeal was that he sought the opportunity to seek to persuade us that the tribunal’s findings in fact gave rise to the conclusion that the respondents had indicated an intention to breach the claimant’s contract of employment. He was not seeking to have different findings in fact made. We did not, in the event, agree with the claimant but that is not to say that the lodgement and pursuit of his appeal was misconceived.  Nor do we see that it could be said that it was unnecessary; it was clearly a necessary procedure to enable the claimant to advance the argument. 

7.	We will, accordingly, pronounce an order refusing the application.