Porter vs Chief Constable of the Police
| Jurisdiction | Northern Ireland |
| Judgment Date | 18 December 2020 |
| Docket Number | 03322/19it |
| Court | Industrial Tribunal (NI) |
| Respondent | Chief Constable of the Police |
THE INDUSTRIAL TRIBUNALS
CASE REF: 3322/19
CLAIMANT: David Porter
RESPONDENT: Chief Constable of the Police Service of Northern Ireland
COSTS JUDGMENT
The unanimous judgment of the tribunal is that respondent’s application for costs is refused.
CONSTITUTION OF TRIBUNAL
Employment Judge: Employment Judge Orr
Members: Mrs F Cummins
Mrs D Adams
APPEARANCES:
The claimant was represented by Ms N Leonard, Barrister-at-Law, instructed by Edwards and Company Solicitors.
The respondent was represented by Mr J Kennedy, Barrister-at-Law, instructed by the Crown Solicitor’s Office.
BACKGROUND
- The claimant presented a claim to the tribunal on 31 January 2019 claiming disability discrimination on two grounds; direct discrimination and a failure to make reasonable adjustments. At the hearing the claimant withdrew his claim of direct disability discrimination. His remaining case of reasonable adjustments related to the respondent’s decision to apply its absence management policy and issue him with a formal written improvement notice following sickness absence for a period of 132 days
2. The hearing took place on 21-22 October 2019 and 19-21 November 2019. The judgment was issued to the parties and recorded in the register on 31 January 2020. This judgment should be read in conjunction with that judgment.
3. There was no dispute between the parties that the claimant suffered from a bowel condition and a musculoskeletal back condition. The respondent accepted at all times that the claimant’s bowel condition was a disability under the Disability Discrimination Act 1995, however it disputed that the claimant’s musculoskeletal back condition amounted to a disability under the legislation.
4. The unanimous judgment of the tribunal was that the claimant’s musculoskeletal back condition did not amount to a disability for the reasons set out in paragraph 79 of the tribunal judgment. The tribunal further determined that even had the claimant been disabled, the respondent did not have the requisite knowledge of this disability and therefore the claimant’s claim for reasonable adjustments would have also failed for the reasons set out in paragraph 81 of the judgment.
5. The respondent made an application for costs by email dated 27 February 2020 on the basis that the claimant had acted unreasonably in the bringing of the proceedings and that the claimant had no reasonable prospects of success.
6. A Review Case Management Preliminary Hearing took place on 24 August 2020 at which the parties were directed to exchange and submit written submissions, relevant authorities and agree a bundle for the purposes of the Preliminary Hearing.
RELEVANT LAW
7. There was no dispute between the parties on the legal principles which the tribunal must apply in respect of an application for costs. The representatives helpfully provided the tribunal with a bundle containing copies of the relevant legal authorities and these were fully considered by the tribunal.
8. The tribunal’s power to award costs is contained in Part 13 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020 (“the Rules”).
73 – (1) A tribunal may make a costs order or preparation time order, and shall consider whether to do so, where it considers that –
(a) A party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or
(b) All or part of any claim or response has no reasonable prospect of success.
9. Harvey on Industrial Relations and Employment Law, Division P1 Practice and Procedure at paragraphs 1044-1120 sets out the tribunal’s jurisdiction in relation to costs.
10. The tribunal reminded itself of the comments of Sir Hugh Griffiths in the case of Marler ET v Robertson [1974] ICR 72;
“Ordinary experience of life frequently teaches us that what is plain for us all to see once the dust of battle has subsided was far from clear to the combatants once they took up arms.”
11. The representatives referred the tribunal to the case of Ayoola v St Christopher’s Fellowship [2014] UKEAT0508/13 which summarises the relevant principles on the exercise of the discretion to award costs.
“17. As for the principles that apply to an award of costs in the Employment Tribunal under the 2004 Rules, the first principle, which is always worth restating, is that costs in the Employment Tribunal are still the exception rather than the rule, see Gee v Shell UK Ltd [2002] IRLR 82 at page 85, Lodwick v London Borough of Southwark [2004] ICR 884 at page 890, Yerrekalva v Barnsley MBC [2012] ICR 420 at paragraph 7. Second, it is not simply enough for an Employment Tribunal to find unreasonable conduct or that a claim was misconceived. The Tribunal must then specifically address the question as to whether it is appropriate to exercise its discretion to award costs. Simply because the Tribunal’s costs jurisdiction is engaged, costs will not automatically follow the event. The Employment Tribunal would still have to be satisfied that it would be appropriate to make such an order, see Robinson and Another v Hall Gregory Recruitment Ltd UKEAT/0425/13 at paragraph 15.
18. On this point, albeit addressing the previous costs jurisdiction under the 2001 Employment Tribunal Rules, the EAT (HHJ Peter Clark) in Criddle v Epcot Leisure Ltd [2005] EAT/0275/05 identified that an award of costs involves a two-stage process: (1) a finding of unreasonable conduct; and, separately, (2) the exercise of discretion in making an order for costs. In Criddle there was no indication in the Tribunal’s Reasons that the Tribunal Chairman had carried the second stage of the requisite exercise and the EAT was not satisfied, in the absence of such indication, that the Chairman had in fact done so. The appeal was thus allowed against the costs order.
19. The extension of the Tribunal’s costs jurisdiction to cases where the bringing of the claim was misconceived has been seen as a lowering of the threshold for making costs awards, see Gee v Shell UK Ltd per Scott Baker LJ. In such cases the question is not simply whether the paying party themselves realised that the claim was misconceived but whether they might reasonably have been expected to have realised that it was and, if so, at what point they should have so realised, see Scott v Inland Revenue Commissioners [2004] ICR 1410 CA per Sedley LJ at paragraphs 46 and 49. Equally, in the making of a costs order on the basis of unreasonable conduct, the Tribunal has to identify the conduct, stating what was unreasonable about it and what effect it had, see Barnsley MBC v Yerrekalva per Mummery LJ at paragraph 41”.
12. Cost Orders are exceptional in the tribunals; unlike the Civil Courts, costs do not normally follow the event. As per LJ Sedley Gee v Shell UK Ltd [2003] IRLR 82:-
“It is nevertheless a very important feature of the Employment Jurisdiction that it is designed to be accessible to ordinary people without the need of lawyers, and that in sharp distinction from ordinary litigation in the UK – losing does not ordinarily mean paying the other side’s costs”.
13. In McPherson v BNP Parabas [2004] EWCA Civ 569 the Court of Appeal held there was no necessity for a causal link between a party’s unreasonable behaviour and the costs incurred by the receiving party:
“40 The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring BNP Parabas to prove that specific unreasonable conduct by Mr McPherson caused particular costs to be incurred …
41 … the unreasonable conduct is a precondition of the existence of the power to order costs and it is also a relevant factor to be taken into account in deciding whether to make an order for costs and the form of the order”.
14. In the Court of Appeal, in the case of Sud v London Borough of Ealing [2013] EWCA Civ 949, LJ Fulford ...
To continue reading
Request your trial