Appeal No. EAT/417/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 May 2001

Before
MRS RECORDER COX QC
MR P A L PARKER CBE
MR S M SPRINGER MBE

MR OKO-JAJA	APPELLANT

LONDON BOROUGH OF LEWISHAM	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised
25 September 2001

	APPEARANCES

For the Appellant	The Appellant in person	
For the Respondent	No appearance or
representation by or 
on behalf of the Respondent 	

MRS RECORDER COX QC

1	This is an appeal from the Decision of an Employment Tribunal sitting at London South, promulgated on 20 March 2000 that the Appellant should pay to the Respondent a fixed sum of £250 by way of costs.  An application for a review of the Employment Tribunal’s Decision was made by this Appellant, but was refused by the Tribunal in a Decision promulgated on 17 April 2000 and the Appellant then proceeded by way of an appeal to this Appeal Tribunal.  

2	The background to this matter is as follows.  On 22 June 1999 the Appellant had first brought a complaint to the Employment Tribunal alleging that the Respondent had unlawfully discriminated against him in that he had been treated less favourably by the Respondent for a reason relating to his disability, contrary to Section 5 of the Disability Discrimination Act 1995.  

3	His allegation in that case was that he had applied unsuccessfully for a post with the Respondent as a Housing Adviser and that his failure to secure that post was by reason of his disability.  The Appellant is, as the Tribunal record in that case, a paraplegic and uses a wheelchair.  

4	The Respondent denied the allegation on the basis that the vacancy had been withdrawn due to internal redeployees being appointed to the post in accordance with their established policy.  The matter proceeded to a hearing on 5 October 1999 at which the Appellant was unsuccessful.  At the conclusion of the hearing and upon the Employment Tribunal giving their Decision, the Respondent applied for costs on the basis that the Appellant had acted unreasonably in conducting the proceedings.

5	That application failed, but the Employment Tribunal stated at the conclusion of their Extended Reasons that the Tribunal was extremely sympathetic to the Respondent’s application and that:
“ an applicant who acts precipitately and comes to the Tribunal before taking reasonable steps to enquire of the Respondent whether their suspicions have any basis may well face a Costs Order if unsuccessful.”

6	Meanwhile on 17 July 1999 the Appellant had applied for another post with the Respondent as a Tenancy Relations Officer, and he attended an interview for this post on 4 August 1999.  Following that interview, he was informed that he had been unsuccessful, and it was explained to him subsequently, that he had given unsatisfactory answers to two of the questions which were asked at interview.  

7	He then brought a second complaint to the Employment Tribunal on 2 October 1999, which is the subject of this present appeal, alleging unlawful victimisation contrary to Section 55 of the Disability Discrimination Act.  He alleged in this case that the reason for his failure to secure this post was the fact that he had previously brought a complaint alleging disability discrimination against the Respondent to the Tribunal.  In these complaints too, the Appellant was unsuccessful, the Employment Tribunal finding unanimously that although the Respondent corporately knew of the previous complaint to the Tribunal, neither of the two members of the interviewing panel, who were the decision-makers in this instance, knew anything about his previous application for employment with the Respondent or his previous complaint to the Tribunal; that is Ms Menville and Mr Long.  

8	The Appellant also complained of victimisation in relation to the delay that he alleged had occurred between his request for feedback made in letters written by him on 16 and 24 August 1999 and the Respondent’s response of 8 September.  The Tribunal found, expressly, that that was not an unreasonable delay, having regard to the fact that the letters were written during August which is a holiday period.  

9	The other finding of the Tribunal was that the reason for his lack of success was that, following an objective assessment of his performance at interview, the panel considered that he did not meet the criteria in respect of two of the questions asked.  They stated at paragraph 11 of their Reasons that:-
“After taking most particularly detailed evidence of the process, the Tribunal accepts the Respondent’s evidence as to the manner in which the interviews were carried out and marked.”

10	They then considered an application for costs made by the Respondent and on this occasion the application was successful.  In paragraphs 28 and 29 of their Reasons, they stated as follows: 
“The Tribunal in application of Rule 12 has come to the view that this is a case where the Applicant has acted unreasonably.  At the hearing of the previous matter he had been given a warning in unequivocal terms, even though at that stage no order was made against him.  In these present circumstances it is the Tribunal’s view that all material potential evidence was available to him from an early stage and that it was open to him to get legal advice.  He has declined to explain what the nature of that advice was.  The Applicant’s case has not rested on sound legal principles given the nature of the evidence that has been clearly stated to him from initially straight after the interview or soon after the interview: he has nonetheless persisted with the claim, which has involved significant expense on behalf of the Respondent.” 
(Paragraph 28)

In paragraph 29 they go on to say that they have decided to make an award in the specified sum of £250.  Originally, the Appellant appealed against the Tribunal’s Decision on his complaint of victimisation, as well as against the Order made against him for costs.  At the preliminary hearing before this Appeal Tribunal however, the substantive appeal was dismissed upon withdrawal by the Appellant and the matter was permitted to proceed to a full hearing only on this issue, as to the award of costs.

11	On that issue the Respondent has cross-appealed to this Tribunal on the grounds of perversity, namely that no reasonable Tribunal, in exercising their discretion to fix the amount of costs awarded, would have considered that it was difficult adequately to reflect the costs incurred by the Respondent, and that they should therefore have considered the alternative basis of making an award of costs on a standard or indemnity basis to enable the assessment procedure in the County Court to take effect.  Further, the Respondent contends that no reasonable Tribunal in all the circumstances, would have limited the amount of the award to £250, and that they should have awarded a sum, if a specified sum was appropriate in the sum of £500.

12	At the hearing today, the Appellant appeared in person before us and we have also read a copy of his Skeleton Argument, together with a copy of the Skeleton Argument prepared by Counsel, who was appearing by virtue of the ELAAS scheme, before this Appeal Tribunal, on the day of the preliminary hearing.  The Respondent had notified this Appeal Tribunal that it could not appear today, but relied upon a detailed Skeleton Argument which the Appellant had an opportunity to read and to deal with.  

13	On the appeal the Appellant contends that he did not act vexatiously or unreasonably and that the Tribunal erred in law in arriving at the conclusion that he had.  There are a number of grounds covered in detail in his Skeleton Argument, but he has been content before us to say that he relies principally upon those grounds identified by Counsel on his behalf, in the preliminary hearing, to which we have had full regard.  
14	The Respondent contends that the Employment Tribunal was entitled, on the evidence before it, in applying the provisions of Rule 12 of Schedule 1 to the 1993 Regulations, to come to the conclusion that the Appellant had brought and/or conducted these Employment Tribunal proceedings unreasonably.  The Respondent further contends that the Tribunal was entitled to exercise its discretion under that Rule to make the Order for costs against the Appellant.  

15	The power to award costs in the Employment Tribunal is rarely exercised, as the Decision of the first Employment Tribunal, in October 1999, demonstrates.  The power is governed by the provisions of Rule 12 of Schedule 1 to the 1993 Employment Tribunals Constitution and Procedure Regulations.  It reads as follows:

“12  Costs
(1) Where, in the opinion of the tribunal, a party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably, the tribunal may make -
(a) an order containing an award against that party in respect of the costs incurred by another party.”

Some assistance as to this power is to be gained from a decision of this Appeal Tribunal in 1999 Beynon v Scadden [1999] IRLR 700, in which the Employment Appeal Tribunal held that the proper test for the Employment Tribunal was not whether its Order accorded with any particular authority but ultimately whether it was just to have exercised, as it did, the power conferred upon it by the Rule.  We must remember too that the test for us is different from that which is appropriate in the Employment Tribunal.  We must not consider whether we would have ordered as the Chairman did, but instead ask ourselves whether the Employment Tribunal took into account matters which it should not have done, or failed to take into account that which it should have done, or whether in some other way it came to a conclusion to which no Employment Tribunal, properly directing itself, could have come.  

16	We have considered very carefully everything that the Appellant has said to us this morning, and we find that he has persuaded us that it is appropriate for us to interfere in this case.  

17	It seems that the Tribunal, in paragraph 28 of their Extended Reasons, took into account two principal matters in arriving at their decision to award costs.  Firstly, they had regard to the previous warning he had received in the case pursued earlier in 1999, even though at that stage no Order was made against him.  

18	We do not consider that this was an irrelevant consideration, having regard to the fact that this was a costs application made in a second case brought by the same applicant, where on a previous occasion, a similar application had been made, as a result of which a Tribunal had specifically made a costs warning. 

19	However the Tribunal do not refer only to that issue.  They go on to say that it is the Tribunal’s view that “all material potential evidence was available” to the Appellant from an early stage and that it was open to him to get legal advice.  Further, they say that he has declined to explain what the nature of that advice was.  We do not consider that the Tribunal were here speculating as to the nature of legal advice received by the Appellant, and we do not therefore, find ourselves persuaded that this was an irrelevant consideration or disclosed an error of law on their part. However we are principally concerned with their finding, which was obviously relevant to their conclusion, that all material potential evidence was available to this Appellant from an early stage.  

20	On that issue we consider they were in error.  The complaint which this Appellant pursued was a complaint of victimisation.  It is well recognised in our courts and tribunals that it is often difficult in such cases for a complainant to be able to provide direct evidence of victimisation.  An applicant will often rely upon being able to show, through cross-examination of the relevant witnesses, that the Respondent’s stated reasons for the relevant treatment were not in fact the true reasons for that treatment.

21	Accordingly, we take the view that it was wrong for this Tribunal to conclude that, although all the material potential evidence in the form of documentation was available to the Appellant from an early stage, it was unreasonable for him to bring or to persist in his claim.  Having looked carefully at the documents before us however, we see that in any event the Appellant was (in the feedback letter) provided only with a declaration as to the findings of the relevant members of the interview panel, without a full explanation as to the way that the questions had been marked and the comparison between himself and the other candidates who were interviewed  

22	We therefore can see no basis for a finding that this Appellant acted unreasonably in bringing the proceedings to the Tribunal.  It is true that at a later stage, shortly before the hearing was due to start, a bundle of documents was supplied by the Respondent, which the Appellant would have seen and which provided greater detail about the nature of his response to the questions at interview and the marks that he was given.  However there was no evidence available as to the state of knowledge or the state of mind of the members of the interviewing panel.  Given that this was a crucial issue, lying at the heart of the complaint of victimisation, we take the view that it was reasonable for the Appellant to be able to test that issue at a full hearing.  

23	It was the Respondent’s case, which was accepted by the Employment Tribunal, that the two members of the interviewing panel did not, in fact, have any knowledge of the previous proceedings.  However we know that in paragraph 15 of their reasons, the Tribunal had observed that it was unfortunate that the letter advising the Appellant that he had been unsuccessful at interview came from an individual who was aware of the previous hearing.  

24	In all the circumstances we take the view that it was not unreasonable for the Appellant to have continued to pursue his claim of victimisation to a hearing in order for this matter to be fully explored in evidence. We therefore conclude that the Tribunal did err in finding in paragraph 28 that all material potential evidence was available to this Appellant from an early stage and that this Decision cannot therefore stand.  We therefore allow the Appellant’s appeal against the award of costs, and, in the circumstances, dismiss the cross-appeal.