United Kingdom Employment Appeal Tribunal

Introduction

“1. The claim of unlawful discrimination on racial grounds is well founded.  We award compensation of £7053.94 and interest of £105.81

2. The claim of breach of contract is well founded.  We award damages of £90.34 gross of tax and National Insurance.

3. The costs application reserved by Employment Judge Malone is to be referred back to him in accordance with the case management orders given at the end of the reasons.”

“This appeal is concerned with an order for costs made against the Claimant dated 10 March 2011 which followed upon a much earlier judgment dated 10 May 2010 partially striking out his claim.

At one point the Notice of Appeal complains about the earlier judgment partially striking out his claim.  It is, however, now far too late to appeal that judgment.  I am concerned only with the order for costs.

There is only an appeal to the Employment Appeal Tribunal if a question of law arises.  The Employment Judge applied correct legal principles.  I cannot detect any error of law in his reasoning.

The Claimant says that he never claimed that he lodged any grievance complaint.  But his claim form signed by him clearly makes this claim.  The Employment Judge was plainly entitled to make the finding set out in paragraph 10 of his reasons.

The Employment Judge took into account the Respondent’s failure to comply with the Tribunal’s order.  There is no error of law in this respect.

It is plain that the Respondent provided, and the Employment Judge properly considered, detail of the costs claimed: see paragraph 12 of the reasons.

For these reasons I consider that there are no reasonable grounds for appealing.”

“9. I refer first to the grounds of the costs application.  Although I found that the claimant had provided a misleading impression that he had asked his representative for his file and that this request had been refused, I do not take that particular matter into account in deciding this costs application.  It seems to me that whilst the claimant’s conduct in relation to that matter was unreasonable, it did not have any significant bearing on the additional costs incurred by the respondent.

10. I do not accept the claimant’s submission that he had never claimed to have submitted a grievance nor his submission that the respondent knew and the Tribunal knew that no grievance had been submitted.  On the contrary, his claim to have submitted a grievance was clearly stated in his claim to the Tribunal and if he had acted reasonably in providing documents and information to his representative then the mistaken basis of that claim would have come to light very much earlier than it did.

11. I decide the matter on the basis of my finding at the Pre-Hearing Review that the claimant acted unreasonably in failing actively to pursue his claim.  Nothing that has been said today, whether in the claimant’s evidence or in the submissions which he has made, has persuaded me to change the views which I adopted at that time.  If the claimant had acted like any reasonable litigant in providing documents and information to his own representative, then the complaint of racial discrimination during the employment could have been withdrawn at or very shortly after the Pre-Hearing Review in August 2009, the complaint against Ms Hailes could also have been withdrawn at that earlier time, the claimant’s representative could have provided copy documents when requested and the full Hearing could have proceeded in May 2010 without the need for a Pre-Hearing Review in that month.  The claimant was guilty of unreasonable conduct, it was of considerable gravity and it did put the respondent to substantial additional expense.”