Appeal No. UKEAT/0444/08/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 March 2009

Before
HIS HONOUR JUDGE RICHARDSON
MS V BRANNEY
MR G LEWIS

EUROPEAN WELLCARE SCOTLAND (11) LTD	APPELLANT

MRS A LUCAS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR PAUL CADDEN
(Representative)
European Lifestyles Office
Sefton Park Road
Toxteth
Liverpool
Merseyside L8 OWN	
For the Respondent	MR THOMAS H JOHN
(of Counsel)
Messrs Campbell Law Solicitors
Technology House 
151 Silsbury Boulevard
Milton Keynes
MK9 1LH	

SUMMARY
PRACTICE AND PROCEDURE:  Bias, misconduct and procedural irregularity
UNFAIR DISMISSAL:  Reasonableness of dismissal

Appeal dismissed.  No error of law in the Tribunal’s reasoning and no bias or procedural irregularity.  Appeal misconceived; costs awarded.

HIS HONOUR JUDGE RICHARDSON

1.	This is an appeal by European Wellcare Scotland (II) Ltd (“the Company”) against a judgment of the Employment Tribunal sitting in Bedford (Employment Judge Cockburn presiding) dated 17 June 2008.  By its judgment the Tribunal upheld a claim by Mrs Alice Lucas that the Company had unfairly dismissed her.

The background facts

2.	The Company carries on business in the provision of care and nursing homes.  It is part of a group employing more than 4,000 people in a network of 80 care and nursing homes.  Mrs Lucas was employed by the Company at the Rosewood Care Home near Milton Keynes from 20 February 2006 until she was summarily dismissed on 13 July 2007.  She was employed as deputy care manager.  She is not a nurse by qualification but holds qualifications in rehabilitation and care and in the assessment of rehabilitation and care.  She had 25 years’ experience in the field.

3.	On 27 June 2007 a resident, called Rhoda in the Tribunal’s reasons, suffered a fall.  It happened between 8.15 and 8.30 am soon after Mrs Lucas began her shift.  Rhoda was 86 years of age and suffered from dementia and diabetes.  The Tribunal found that it was noted in Rhoda’s care plan that she would fall to the floor as a way of drawing attention to herself.  The Tribunal accepted evidence from Mrs Lucas that she had herself regularly seen Rhoda fall.

4.	Rhoda had been speaking to a cook, Ms Flick, and two residents called Yvonne and Maud.  It was as she was leaving this group that she fell.  Ms Flick called Mrs Lucas.  Mrs Lucas examined Rhoda.  There was an issue as to whether her examination was thorough.  We will return to this issue later in our reasons.  

5.	Following the examination Mrs Lucas with two other members of staff helped Rhoda into a chair.  She kept Rhoda beside the medication trolley as she continued to dispense medication to other patients.  It was her case that she kept Rhoda sitting there so that she could observe her Rhoda complained of pain while a member of staff put her right shoe back on.  Mrs Lucas told that member of staff that Rhoda was a known attention seeker.  

6.	It happened that on the day in question a regional manager of the Company, Mr Ashton, was paying a periodic visit and passed by.  When he did so a carer was attempting to manoeuvre a wheelchair past the chair in which Rhoda was sitting.  He and Mrs Lucas tried to get her to stand.  She was unable to do so.  They moved her chair to a nearby dining room.  On the one hand Mr Ashton did not enquire about why Rhoda could not stand.  On the other hand, Mrs Lucas did not tell him that Rhoda had just had a fall.

7.	Soon afterwards a care assistant came along.  She saw Rhoda complaining of pain in her leg, apparently distressed.  She observed Mrs Lucas examine Rhoda by bending her leg and asking where the pain was.  Mrs Lucas told her to leave Rhoda as Rhoda was attention-seeking.  But she did arrange for Rhoda to have a paracetomol.

8.	Shortly afterwards, at about 8.40 am, the care home manager Mrs Thursby arrived.  Mrs Lucas reported that Rhoda had fallen, commenting that Rhoda was attention seeking and that she was going to see how it went.  An administrative assistant also passed by and was advised by Mrs Lucas not to make a fuss as Rhoda was making a big deal of it and was just attention seeking.

9.	At about 9.00 am Mrs Lucas asked another member of staff to call the GP.  She was aware that the GP would assess the urgency of the situation over the telephone and visit after surgery.  The GP visited at 1 pm.  He decided that Rhoda should go to hospital for an X-ray.  The ambulance arrived at 3 pm.  It was at the hospital that a diagnosis was made of a fractured hip.

10.	On 28 June Mrs Lucas was suspended.  On 29 June she was told that there were three charges against her.  They were allegations of serious professional misconduct, poor performance or substandard work and maltreatment of a resident.

11.	The disciplinary hearing took place on 5 July 2007.  The decision maker was Ms Guillen.  Prior to the disciplinary hearing the Company’s management obtained witness statements from seven witnesses and sent them to Mrs Lucas.  Mrs Lucas herself obtained a statement from Ms Flick.  

12.	By letter dated 13 July 2007 the Company summarily dismissed Mrs Lloyd.  Essentially the Company gave two reasons.  Firstly it was said that Mrs Lucas “should have known to call the doctor after the resident had fallen”.  Secondly it was said that Mrs Lucas had admitted to saying that the resident was an attention seeker and that “this could be seen as you dismissing the resident’s complaint and constitutes to mal treatment of the resident (sic)”.

13.	On 7 August 2007 an appeal took place.  The appeal was heard by Mr Cadden.  It was dismissed, Mr Cadden considering that the decision to dismiss was “not disproportionate or unreasonable in the circumstances”.

The Tribunal’s reasons

14.	There was no dispute that the Company dismissed for a reason relating to the conduct of Mrs Lucas and that it held a genuine belief in her misconduct.  The Tribunal set out the legal approach applicable in such a case, referring to British Homes Stores v Burchell [1978] IRLR 382 and to Boys and Girls Welfare Society v McDonald [1996] IRLR 129.  The Tribunal’s summary of the law in paragraphs 24 and 25 of its reasons is correct.

15.	The Tribunal said that:

“We find that Ms Guillen and Mr Cadden genuinely believed that Mrs Lucas had committed the alleged acts of misconduct and that the statements that were obtained provided grounds which were reasonably capable of sustaining that belief.  We were, however, more troubled by the investigations upon which the dismissal was based.”

16.	In paragraph 27 of its reasons, the Tribunal commented that the charges levied against Mrs Lucas were extremely serious charges which could foreseeably result in someone of her age and experience being unemployable in the care industry for the rest of her career.

17.	In its subsequent reasons, in the course of a lengthy paragraph 28 and a further substantial paragraph 29, the Tribunal considered three particular issues.  They are to some extent interlinked.  We will endeavour for the most part to summarise what the Tribunal said.

18.	The first issue was the question whether Mrs Lucas ought immediately to have called a doctor or an ambulance after a resident had fallen.  On this question the Tribunal’s reasoning may be summarised as follows.

(1) 	The incident occurred at 8.30am; Mrs Lucas called the doctor at 9.00am after a period of observation of about half an hour.

(2) 	Rhoda was a person who fell frequently, as noted in her Care Plan.

(3)  	There was no protocol or standing instruction as to what the response of staff should be when a resident fell.

(4) 	Ms Guillen gave evidence that when she dismissed Mrs Lucas she did so in the belief that Rhoda had been screaming with pain.  However none of the statements described Rhoda as screaming, though one statement referred to her as having shouted when her shoe was put on.

(5) 	Immediate calling of a doctor or ambulance was not considered necessary by the home manager Ms Thursby who had seen Rhoda at 8.45am.  

(6) 	Immediate calling of an ambulance was not considered necessary by the GP when alerted at 9.00 am.

(7) 	On the specific question of calling an ambulance, the Tribunal found that this would only be appropriate if it had been obvious to Mrs Lucas at 8.30 am that Rhoda’s hip was broken.  The Tribunal stated that it found that it was not obvious to Mrs Lucas at that time that she was dealing with a fractured hip.  (We would add that, although the Tribunal discusses the calling of an ambulance, the dismissal letter referred to calling a doctor).

(8) 	Ms Guillen accepted that whilst residents do unfortunately sometimes fall in care homes it is not always appropriate to call a doctor.  She said that whether it was appropriate to call a doctor would depend on the circumstances and that it could be within the range of reasonable responses to wait 30 minutes before doing so.

(9) 	 Neither Ms Guillen nor Mr Cadden asked to look at the Care Plan and the Risk Register to inform themselves of the relevant background – namely that Rhoda was a person who fell frequently.

19.	The second issue was the question whether Mrs Lucas examined Rhoda properly.  On this question the Tribunal’s reasoning may be summarised as follows.
(1) 	Mrs Lucas herself said that she did a top to toe examination including looking to see whether one leg was shorter than the other.

(2) 	The Company proceeded on the basis that no such examination had taken place “presumably as the subsequent X ray had revealed a fractured hip”.

(3) 	The Company obtained no medical evidence that the conclusion was a reasonable one based on the type of fracture.

(4) 	There were three people present when Rhoda fell.  The Company did not go back to them to obtain specific evidence on the extent of the examination carried out by Mrs Lucas.

(5) 	Neither Mrs Guillen nor Mr Cadden asked to see the accident report to help resolve the disputed version of events.

(6) 	Therefore –

“We further observe that neither Mrs Guillen nor Mr Cadden asked to see the accident report to help resolve the disputed version of events.  Given the seriousness of the charges and the importance to Mrs Lucas in there being a fair conclusion on the reasonableness of her actions between 8.30 am and 9.00 am on the day in question, we find that Ms Guillen should have gone further than merely reading statements that had been volunteered.  She should have spoken individually with those witnesses with whom Mrs Lucas disagreed and put to them Mrs Lucas’s version of events.  In the absence of such steps having been taken by Ms Guillen, they should have been taken by Mr Cadden.” 

20.	The third issue related to the circumstances in which Mrs Lucas had described Rhoda as attention seeking.  The Tribunal reasoned as follows:

(1) 	Ms Guillen considered that it was irrelevant that Rhoda was attention seeking and considered Mrs Lucas’s conduct in describing Rhoda in these terms to be appalling.

(2) 	However, it was Mrs Lucas’s case that, far from being a flippant or uncaring comment, it was relevant to note that Rhoda was attention seeking.

(3) 	Evidence to support Mrs Lucas’s comment was available in Rhoda’s Care Plan.  Neither Ms Guillen nor Mr Cadden asked to see the Care Plan. 

(4) 	Before reaching the conclusion that Mrs Lucas’s conduct was appalling Ms Guillen and Mr Cadden should have investigated the facts more carefully.

21.	After this review, the Tribunal stated the following:
“In the circumstances described above, we find that the Respondent did not carry out as much investigation into the matter as was reasonable in all the circumstances of the case.  Further, having regard to the lack of investigation and the unresolved issues, we find that dismissal was outside the rage of responses open to a reasonable employer.  Mrs Lucas had an unblemished record.  She had implemented unpopular reforms in the care home.  There was no compelling evidence that she had failed to examine Rhoda properly, whilst she did cause Rhoda to be observed for 30 minutes after her fall, after which the doctor was called and the doctor’s advice was acted upon.  For these reasons we find that Mrs Lucas’s dismissal was unfair.”

22.	The Tribunal went on to consider the question of contributory fault.  It held that Mrs Lucas’s compensatory award should be reduced by 25 per cent to reflect the degree to which she caused or contributed to her dismissal.  The Tribunal found that the way in which Mrs Lucas told a number of colleagues on the day in question that Rhoda was an attention seeker gave the impression that she was unsympathetic to Rhoda’s position and could reasonably be considered as demonstrating an unprofessional attitude to a resident.  Further the Tribunal found that she adopted an inappropriately confrontational approach to the disciplinary process which gave support to the evidence against her of unprofessional conduct.

Bias and irregularity

23.	The Company has been represented before us, as it was below, by Mr Cadden its Group Employment Relations Adviser.  He was also the person who had dealt with the appeal.

24.	In the Notice of Appeal Mr Cadden on behalf of the Company raises four grounds which fall within the category of allegations of bias or impropriety against the Tribunal.  We should add that in his skeleton argument Mr Cadden went so far as to say that the Tribunal was not acting in good faith.  When we asked him about that, he said that he did not mean to allege bad faith in the serious sense in which a lawyer would understand that expression, and he withdrew it.

25.	The approach of the Appeal Tribunal to an allegation of bias by a Tribunal is the same as that of any appellate court.  The Appeal Tribunal must first ascertain all the circumstances which have a bearing on the suggestion that the Tribunal was biased.  It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the Tribunal was biased.

26.	The degree of investigation into the facts which is required will vary with the subject matter of the allegation.  Sometimes a very full investigation into the facts is necessary. The Appeal Tribunal has a procedure for examining contested allegations of bias which it operates in appropriate cases.  There will, however, be other cases where there is no significant dispute about the facts or where it is sufficient for the Appeal Tribunal to ask whether, on the assumption that the facts are as the appellant says, the Tribunal’s decision was vitiated by bias: see Stansbury v Datapulse plc [2004] IRLR 466 at para 25.

27.	Similar principles apply where there is an allegation of irregularity of some kind at the Tribunal hearing.  It is of course not every minor irregularity at a Tribunal which vitiates its judgment.  If a hearing is fair overall, then it is capable of absorbing and dealing with many irregularities without any real injustice to either party; but there does come a point when an irregularity at a hearing is such that the hearing overall cannot be said to be fair.   The law guarantees such a hearing,

28.	Firstly, Mr Cadden says that when, during his closing argument, he raised the question of contribution, the Employment Judge commented that Mrs Lucas’s solicitor had not dealt with that issue during his closing submissions, and gave Mrs Lucas’s solicitor an opportunity to do so.  This to our mind is not at all indicative of bias and is not irregular.  Practices among advocates and Tribunals vary as to whether the issue of contribution is dealt with at the same time as the issue of unfair dismissal or later, as part of the issue of remedy.   If one advocate deals with it and another has not, an Employment Judge will be astute to ensure that both advocates have understood that the issue is in play and that they have had an opportunity to deal with it.  In the result the Tribunal found in favour of the Company that there was contributory fault.  It was essential that, before doing so, the advocate for Mrs Lucas should have been given an opportunity to address this issue.

29.	Secondly, Mr Cadden says that during the closing submission for Mrs Lucas the Employment Judge prompted the solicitor for Mrs Lucas as to how he should word his submission.  This he says occurred during the submissions about the application of the test in British Homes Stores v Burchell.  It is not at all unusual for judges during closing submissions to discuss with advocates how their case is put, and to raise with advocates points and issues arising out of the evidence which have struck the Tribunal as important either way.  This is not indicative of bias or irregular.

30.	Thirdly, Mr Cadden says that when Mrs Lucas was giving evidence she was hostile to him, and the Employment Judge did not reprimand her but simply told her to control her ill feelings.   This is not an inappropriate course to take and is not indicative of bias.  A Tribunal will always be interested in the demeanour of a witness and if a witness ignores a polite request to control her ill feelings the Tribunal will learn a great deal about her from her failure to heed that request.  It is noteworthy that in due course the Tribunal made a finding of contributory fault against her on the basis that she adopted an inappropriately confrontational attitude to the disciplinary process.  A Tribunal which is considering such a finding will wish to observe carefully the demeanour of the witness before the Tribunal. 

31.	Finally, Mr Cadden says that the hearing had originally been for two days, but was reduced to one day because no panel was available on the first day.  He accepts that he agreed to this course.  He says that the Employment Judge said that the case would be time managed to allow the hearing to be completed in one day, but did not in fact allocate any time scales.  He says that his cross examination of Mrs Lucas began at 3.15 pm, and that the Employment Judge reminded him of the time and the need to complete the hearing in one day.  He says that he felt under time pressure and did not ask all the questions he needed to ask.  He says he was treated differently from the representative of Mrs Lucas.

32.	We do not see any irregularity or cause of unfairness in the way the Tribunal was conducted.  If a hearing in an unfair dismissal case is to be completed in a day, it is likely that cross examination of the claimant will be reached in mid afternoon.  It is always important to appreciate that in an unfair dismissal case the most important witness is the person who took the decision to dismiss, and the next most important the person who dealt with an appeal.  That is because the fundamental task of the Tribunal is to review why the employer took the decision and whether it was a reasonable decision.  These witnesses are heard first.  While the claimant is an important witness, her evidence comes later.  She was the last witness in the case.  It is not surprising that her cross examination was reached at 3.15, and it still allowed time for the case to finish.  The Employment Judge had made it clear earlier in the day that the case was to be completed in the day; we do not find it at all surprising that he repeated this in the middle of the afternoon.   It is not suggested that the Employment Judge actually curtailed or needed to curtail cross examination.

Factual complaints

33.	On behalf of the Company Mr Cadden makes two complaints which are essentially factual in nature.

34.	Firstly, he complains about a finding of the Tribunal that when Mrs Lucas was employed the care home did not have the best reputation among the care homes in the area, and that she set about devising new systems and improving staff performance.  It is plain, however, that this was her evidence.  The Tribunal was entitled to accept it.  

35.	Secondly, he complains about the Tribunal’s finding that Mrs Lucas did a thorough top to toe examination of Rhoda.  He says this was not borne out by the evidence.  He has asked us to consider what Mrs Lucas said in cross examination.  

36.	Mr Cadden has not operated the procedure set out in paragraph 4 of the Appeal Tribunal’s Order dated 27 October 2008.  There is no agreed note of her evidence, and the Employment Judge has not been asked for his notes.  This alone might be fatal to this ground of appeal, for there is no material on which we could conclude that the Tribunal reached a perverse or impossible finding.

37.	But we think in any event that whatever concession Mr Cadden extracted in cross examination was fairly minor.  He quotes the witness statement of Mrs Lucas as saying that she checked Rhoda all over for any bruising or injury, looking at her legs and looking to see if one leg was shorter than the other.  There was on any view a substantial discrepancy between what Mrs Lucas was saying about the examination she conducted and the conclusion which the Company reached about it.   Even if she made some concession in cross examination, she was still saying that she made a sufficiently thorough examination in the circumstances, and this was in dispute.  The Tribunal was entitled to reach the view that this was a matter which required careful investigation by the Company. 

Legal approach

38.	Mr Cadden then submits that the Tribunal applied the wrong legal test in reaching its finding of unfair dismissal.  He submits that the Tribunal applied the wrong burden of proof.  He points out that in respect of the section 98(4) question there is no burden of proof on the employer: see Post Office Counters Ltd v Heavey [1989] IRLR 513.  He submits that the Tribunal fell into the trap of substituting its own view for that of the employer: he cites Iceland Frozen Foods v Jones [1982] IRLR 62 and Sainsbury’s Supermarket v Hitt [2001] IRLR 887.  

39.	We have carefully considered the reasoning of the Tribunal.  Firstly, the Tribunal gave a statement of its legal approach in paragraphs 24 and 25 of its reasons.  That is a correct statement of legal approach, and places no burden of proof on the employer to satisfy the test in section 98(4).  There was in particular reference to Boys and Girls Welfare Society v McDonald [1996] IRLR 129, which states with clarity the position about the burden of proof and about the range of reasonable responses test.  Secondly, we do not think the Tribunal’s reasoning displays any error of law.  After its detailed examination of the case, the Tribunal returns to and answers the correct legal questions in paragraph 30 of its reasons.

40.	In particular, on the question of investigation, we see no error of law in the Tribunal’s reasoning.  The Tribunal was entitled to form the view that it was not reasonable, once it became clear at the disciplinary hearing that there were significant issues of fact, to proceed to dismiss without further investigation, including speaking to the people concerned.  This was not a case like Boys and Girls Welfare Society v McDonald, where the misconduct was admitted or virtually admitted.  Whether a failure to do was unreasonable was a matter of judgment for the Tribunal.  The Tribunal was in a position to assess this, and no error of law is revealed by its reasoning.  Moreover it does seem very surprising that the Company never looked at or considered Rhoda’s Care Plan.   At all events, the question for the Appeal Tribunal is whether there is an error of law in the Tribunal’s reasoning.  We can detect none.

41.	In his closing remarks to us Mr Cadden emphasised the high duty of care owed by his Company to its patients who are vulnerable.  This duty we acknowledge, but it does not absolve the Company from scrutiny of the reasonableness of its investigation and of its decision to dismiss a member of staff.  The Company is a substantial organisation employing some 4,000 people and can be expected to have the administrative resources to deal with such matters properly. 

42.	We are not satisfied that the Tribunal’s reasons disclose any error of law of any kind or that the hearing was in any way irregular.  The appeal will be dismissed.

Application for Costs

43.	In this matter in which we have dismissed the appeal we now have an application on behalf of Mrs Lucas for an award of costs.  The Employment Appeal Tribunal’s power to award costs is found in Rule 34A of the Employment Appeal Tribunal Rules 1993:

“34A	When a costs or expenses order may be made
(1)	Where it appears to the Appeal Tribunal that any proceedings brought by the paying party were unnecessary, improper, vexatious or misconceived or that there has been unreasonable delay or other unreasonable conduct in the bringing or conducting of proceedings by the paying party, the Appeal Tribunal may make a costs order against the paying party.

(2)	The Appeal Tribunal may in particular make a costs order against the paying party when‑
(a)	he has not complied with a direction of the Appeal Tribunal;
(b)	he has amended its notice of appeal, document provided under rule 3 sub-paragraphs (5) or (6), Respondent’s answer or statement of grounds of cross‑appeal, or document provided under rule 6 sub-paragraphs (7) or (8) ; or 
(c)	he has caused an adjournment of proceedings.

(3)	Nothing in paragraph (2) shall restrict the Appeal Tribunal’s discretion to award costs under paragraph (1).

44.	It seems to us appropriate to approach this matter in two stages.  The question of amount we will hold over for the moment because a substantial bill amounting to some £10,223 has been put in on Mrs Lucas’s behalf.  It seems to us appropriate first of all to address the question whether the threshold has been crossed under Rule 34A.  

45.	On behalf of Mrs Lucas it is submitted that the appeal was misconceived.  There is no definition of this word in the Employment Appeal Tribunal Rules.  It is defined in Employment Tribunal Rules as including “having no reasonable prospect of success”.  We do not feel the need to define it for the purposes of this appeal.  Whether an appeal is misconceived is something that can readily be recognised.  

46.	We have come to the conclusion that this was a misconceived appeal.  In a number of respects the appeal relied on grounds of bias and irregularity which we have examined carefully but which we found to have absolutely no substance in them at all.  Listening to Mr Cadden, we found him to be saying little more than that he regarded the Tribunal as biased because it decided the case against his company.  Any appreciation of the law on this subject should have alerted him to the hopelessness of his submissions.  

47.	We observe also that there was a reference in Mr Cadden’s skeleton argument to want of good faith on the part of the Tribunal.  Again, that submission should never have seen the light of day.  Advice from an experienced practitioner would have prevented Mr Cadden from making it.

48.	In other respects the grounds of appeal were essentially factual.  The first such ground – relating to Mrs Lucas’s evidence about the reputation of the Home and her efforts to improve standards – was entirely hopeless: there is an appeal to the Appeal Tribunal in respect of a finding of fact only if there was no evidence to support it, and the Notice of Appeal and the skeleton argument recorded that Mrs Lucas had given evidence on the subject.  The other ground of appeal had not been made the subject of any notice in accordance with paragraph 4 of the Employment Appeal Tribunal’s order to Mrs Lucas’s solicitors.  This was an elementary omission.  

49.	The argument that there was an error of law in the Tribunal’s reasons was not founded on any particular passage in the Tribunal’s reasons.  The Tribunal had given itself a proper self‑direction.  We asked Mr Cadden what it was in the Tribunal’s reasons to which he pointed as indicating that there was an error of law rather than simply a result with which he disagreed.  He was not able to point us to anything at all.  

50.	We are entirely satisfied that the appeal crosses the threshold into the characterisation of being misconceived.  

51.	Mr Cadden submitted that since the appeal when considered on paper was ordered to have a full hearing, it followed that there were reasonable grounds for appealing.

52.	When a Judge considers a Notice of Appeal on paper it is sometimes possible to see for certain that there is no reasonable ground for appealing.  In that case the appeal will be disposed of in accordance with rule 3 of the Employment Appeal Tribunal Rules.  But there are also many cases where a Judge on paper cannot say for certain that there are no reasonable grounds for appealing and then, in the Judge’s discretion, the case may proceed either to a preliminary hearing or, as this one has done, to a full hearing.  The ordering of a full hearing by a Judge does not afford any guarantee that when the Notice of Appeal is given full examination it will be found to contain any merit.  In this case on full examination we consider that the Notice of Appeal has no merit; and the appeal was in our judgment misconceived.

53.	We therefore are in a position where we have a discretion whether to award costs.  We are not bound to do so because the threshold is crossed.  We observe however that the Appellant is a substantial company.  At the moment see no reason why there should not be an order for costs.  We will, however, now proceed to consider whether and in what amount to make an award of costs and for this purpose we will look in more detail at the schedule that has been put forward and listen to any objections Mr Cadden has.  

[The Appeal Tribunal heard further submissions on the question whether and in what amount an order for costs should be made]

54.	A few minutes ago we gave judgment holding that the threshold had been passed in this case for an award of costs in favour of Mrs Lucas.  That left us however a discretionary exercise as to whether to make an award for costs and if so how much the award should be.  

55.	On the question whether to make an award of costs it seems to us that it is appropriate in this case to make an award of costs.  As we have said, we find the appeal to be misconceived.  The company is a substantial organisation with substantial resources.  It has not in fact instructed any specialist lawyers itself.  It might have either abandoned the appeal or at the very least focussed it if it had done so.  We see no reason why there should not be an award of costs in Mrs Lucas’s favour.

56.	The question then comes as to the amount.  We have given Mr Cadden an opportunity to address us on the amount.  He has had Mrs Lucas’s bill for 24 hours.  He has known about the application for costs for some time; it was pre-figured long before today’s hearing.  It is the normal practice in the Appeal Tribunal to assess costs and we propose to do so.  The total bill put forward is £10,223 inclusive of VAT.  We consider it was reasonable to instruct Counsel for this hearing and that his fee is a reasonable fee.  We consider that it was reasonable for the solicitor who acted for Mrs Lucas to go on acting in the preparation for the appeal.  But we do think that a number of the items that are charged are not called for.  In this particular case we do not think that the attendance of a clerk, which accounts for a significant proportion of the bill, is required.  We do not think that the number of meetings with the client and letters was necessary.  We have had overall regard to the importance of arriving at an assessment of costs which is reasonable and proportionate to what is at stake.  We have reached the conclusion that the total amount of costs to award inclusive of VAT is £5,203.  We have reached that figure by making some broad assessments.  We have allowed the amount of Counsel’s fee, the allowance of a substantial amount for the preparation by a solicitor of a skeleton argument, the allowance of a substantial amount for the preparation of the Answer and the immediate work that has to be done around the Answer and a further substantial general amount for preparation including the briefing of Counsel.  All of those things we have taken into account in reaching the figure of £5,203 and we have before reaching that figure added VAT.  So that is the total figure that there will be – an award of costs of £5,203.