Costs Orders and Deposit Hearings

16 May 2012

Louise McAloon of Worthingtons Solicitors considers recent cases in which applications were made for costs against applicants

Doctor Philip Thomas v Belfast Health and Social Care Trust & others (Case Refs 6739/09, 276/10, 1375/10 & 2322/10) At a hearing on 10th October 2011, the Tribunal unanimously ordered the Claimant to pay costs to the Respondents in the sum of £5,400.00.

The Claimant’s previous claims of direct race discrimination and victimisation were dismissed by the Tribunal on 2nd August 2011.  The First Named Respondent had written to the Claimant on 22nd March 2011setting out its position regarding the case and advising that if the Claimant did not withdraw his claims, the Respondent would seek their costs. The Claimant proceeded to hearing and when the Claimant’s claims were dismissed, the First Named Respondent applied for the costs incurred after 22nd March 2011, which were quantified in the sum of £15,769.30 but limited for the purposes of the application to the sum of £10,000.00 under Rule 41 (1) (a).

The grounds for the application were that the Claimant was misconceived in bringing the proceedings and his conduct of the proceedings was unreasonable. The Tribunal noted the caution that it should exercise in examining a case with the benefit of hindsight and further the difficulties which face a Claimant in a discrimination claim; in that there is rarely overt evidence of discrimination and as such it can be difficult for the Claimant to know whether or not he has real prospects of success until the explanation of an employer’s conduct is heard, seen and tested.

The Tribunal found that the taking of the case was not misconceived or vexatious and at the time of presenting proceedings there were questions which the claimant could reasonably have posed and which required some further explanation from the respondents.The Tribunal however proceeded to find that it should have been apparent to the claimant, on receipt of the respondents’ witness statements that he had little reasonable prospect of success and even if the claimant were not in a position to reach this conclusion at that stage, he should certainly have reached that conclusion by the end of his own evidence and cross-examination, clearly setting out the case of the respondents.The Tribunal considered that the conduct of the proceedings from that point onwards was unreasonable.

Whilst factoring in the Claimant’s ability to pay, the Tribunal also took into account the fact that the claimant represented himself during these proceedings and also that whilst the respondents took the view that there was no reasonable prospect of success in this case, they took no steps to request a deposit hearing under Rule 20 of the Rules of Procedure which had the less onerous test of ‘little reasonable prospect of success’ and which may have concentrated the claimant’s mind at an earlier stage and avoided some of the costs which were subsequently incurred by both parties.

Indirect sex discrimination in shortlisting criteria - objective justification Nuala Crilly v Ballymagroarty Hazelbank Community Partnership (Case Ref 242/11) In a decision issued 31st October 2011, the Tribunal unanimously held that the Claimant suffered indirect sex discrimination due to the Respondent’s failure to shortlist her for the post of Neighbourhood Regeneration Officer in October 2010.

The essential criterion in dispute in this case was “A 3rd level qualification in a relevant discipline with 2 years’ relevant experience in community development capacity (paid) gained within the last 5 years”.

The Claimant had a six year break from paid work due to her child caring responsibilities and during that period had extensive involvement in the voluntary sector in the area of community development and neighbourhood regeneration. The Tribunal found that the relevant pool for comparison purposes was all suitably qualified candidates both male and female within Northern Ireland who could comply with the criterion apart from the five year stipulation and in finding that the 5 year stipulation did have a disproportionate adverse impact on females, the Tribunal relied upon the statistics drawn from a Northern Ireland Labour Force Survey that 90.6% of those economically inactive due to “looking after family and home” were women and the Panel’s own knowledge of the workforce that, in practice, the vast proportion of people who take periods out of the workplace due to looking after family and home are women who do so due to childcare responsibilities.

The Tribunal found that the 5 year stipulation (the PCP) placed women at particular disadvantage including the Claimant and was then tasked to consider whether the use of the 5 year stipulation was objectively justified, i.e, whether it was a proportionate means of achieving a legitimate aim.

The legitimate aims relied on by the Respondent were that they needed to have someone in post able to perform with minimal supervision, to do the job without the need for extensive training and that the requirement for experience had actually been reduced from the previous recruitment exercise from 3 years to 2 years within the 5 year period to widen the pool as far as possible.

The Tribunal concluded that whilst one or more of these objectives could well amount to a legitimate aim in particular circumstances, the Tribunal was not satisfied in this case that the means employed to achieve the aims were sufficiently connected to them or proportionate. Further it was not satisfied that the means chosen in this case were appropriate and necessary to achieve the legitimate aims stipulated.

To this end, the Tribunal considered that the fact that the 2 years paid experience could have been gained at the beginning of the 5 year period undermined the Respondent’s contention that a candidate needed to be able to “hit the ground running”. The Tribunal also accepted the Claimant’s contention that the two month induction period could have been used to bring her up to date with any new policy documents or action plans in the field with which she was not familiar. The Tribunal further accepted the Claimant’s case that there should have been flexibility on the criterion in relation to the five year period so as to enable people such as the Claimant (who could demonstrate extensive unpaid relevant experience) a chance to be interviewed and tested at interview.

The Tribunal rejected the claim for aggravated damages, did not find any of the Respondent’s actions as amounting to misconduct of any kind nor did it find them to have acted in a high handed, malicious, insulting or oppressive manner. The Tribunal noted that there was no motive to discriminate against women or the Claimant and described the Respondent’s actions as “an honest application of flawed criteria”. The Respondent is a voluntary organisation and in drawing up the criteria drew on its collective experience from other voluntary groups. The Tribunal found the Claimant to have been over-sensitive to some degree but undoubtedly hurt and aggrieved by her treatment.

The Tribunal awarded £8,920.00 financial loss (being 50% of the loss claimed on the basis that the Panel assessed the percentage likelihood of the Claimant obtaining the post at 50%), injury to feelings in the low-Vento band of £5,000.00 and interest of £857.00.

It should be noted that the future loss component of the financial loss figure is currently the subject of a review application by the Respondent.

Louise McAloon is an Associate Partner with Worthingtons Solicitors specialising in employment law.

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