Appeal No. UKEATS/0058/09/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 23 June 2010

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

NICOLSON HIGHLANDWEAR LTD	APPELLANT

GORDON NICOLSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR A A KHAN 
(Solicitor)
Messrs Ramsay Employment Law
Third Floor
21 West Nile Street
Glasgow
G2 2PS	
For the Respondent	MR GORDON NICOLSON
(The Respondent in Person)

SUMMARY
PRACTICE AND PROCEDURE - Costs

Employment Tribunal refused to award expenses to Respondent notwithstanding having found that the Claimant’s dismissal was on account of what the Tribunal found could be described as  his having defrauded the Respondent.  On appeal, Tribunal’s decision set aside and a finding that the Respondent was entitled to an award of expenses substituted with the matter thereafter being remitted to a fresh Tribunal to determine the amount.

THE HONOURABLE LADY SMITH 
Introduction
1.	This is an appeal from the judgment of an Employment Tribunal sitting at Edinburgh registered on 29 September 2009 (“the Second Tribunal judgment”), Employment Judge Susan O’Brien QC, refusing the Respondent’s application for expenses.

2.	The application was made in writing, intimated to the Claimant (he did not reply) and determined by the Employment Judge in chambers on 17 September 2009.

Background
3.	The Respondent’s application for expenses followed the issuing by an Employment Tribunal sitting at Edinburgh (comprising Employment Judge Susan O’Brien QC and members) of a judgment registered on 3 August 2009 (“the First Tribunal judgment”), in which the Claimant was found to have been unfairly dismissed but not entitled to any award of compensation.

4.	Very briefly, the Respondent’s business is in the wholesaling, retailing and hiring out of highland wear.  The Claimant was previously working for another business and in 2001, the Respondent’s Mr Chalmers suggested that they go into business together in a retail outlet.  They found premises in the Canongate, Edinburgh and the Claimant secured a lease of them in his favour, as an individual.  He agreed with Mr Chalmers that the lease would be transferred to the Respondent and the Respondent began trading from those premises in about 2002.  The Claimant was a director of the Respondent until 31 July 2008 but following certain concerns being expressed by Mr Chalmers regarding the financial performance of the business, he ceased being a director and became employed as retail manager of the premises in the Canongate.  Thereafter he was repeatedly asked for financial details for the shop but delayed and prevaricated.  It became apparent to Mr Chalmers that its financial situation was worsening.

5.	On 9 October the Claimant told Mr Chalmers that the lease to the premises remained in his name and that “he wanted the company out of the shop by the end of November” (First Tribunal judgment paragraph 17).  That was the first that Mr Chalmers knew of the Claimant having failed to see to it that the lease was transferred to the Respondent company.  In a subsequent visit to the shop Mr Chalmers found it in chaos, he discovered a dual invoicing system, invoices for rental customers not listed on the computer system, evidence of a separate business called “Nicolson Kiltmakers” trading from the premises, a business which involved the Claimant and was passing itself off as the Respondent’s business, cash discrepancies and various other matters of serious concern from a financial point of view.  He concluded that the Claimant had been acting fraudulently.  On Sunday 26 October 2009, he reached that view.  He was due to meet with the Claimant on 28 October.  He had drafted a letter of dismissal on 27 October and took it with him to the meeting the following day, a meeting which resulted in the Claimant’s dismissal.  The dismissal set out in detail the Respondent’s allegations of the financial irregularities, for which they said the Claimant was responsible.

6.	At that time, the statutory dismissal procedures applied.  The Tribunal took the view that the relevant procedure was the standard procedure, not the modified procedure and found that the Claimant had been “automatically” unfairly dismissed because the standard procedure had not been followed.

7.	However, the Tribunal made very significant findings regarding the cause of the Claimant’s dismissal.  At paragraph 41 of the First Tribunal judgment, they stated:

“The claimant’s gross misconduct directly led to his dismissal.”

8.	At paragraph 59, they stated:

“In the present case, there was overwhelming evidence that the real reason for the dismissal was the fact that Mr Chalmers suspected the claimant of gross misconduct.  That misconduct can be characterised as prima facie fraudulent intromissions with the Respondent Company’s business.”

9.	At paragraph 67, they stated:

“However, this is an exceptional case.  The claimant was curiously unabashed by the admissions he made orally in evidence, many of which amounted to admissions of what some people might describe prima facie as amounting to fraud on the Respondent company.  It seems that he saw Nicolson Highlandwear Ltd as the realisation of a dream, where he gave his own name to a business which he believed would provide for his family for years to come.  Whatever the reasons for the downturn in profits originally, after July 2008 he could not accept that Mr Chalmers had relegated him to the status of an ordinary employee.  He believed that “his” shop could continue trading, and failed to acknowledge the obvious financial problems as they mounted up.  He said quite frankly that he had to do what it took to provide for his family, and in his own mind he was doing nothing wrong when he diverted orders from the Respondent company.  This was not a case where the findings in fact are made in the face of indignant denials by the claimant; much of the evidence against him was freely admitted e.g. authorship of R/97.  In connection with some detailed allegations, he had reasonable explanations, but these details were trivial in the context of the huge weight of the whole evidence.  On the other hand, he was not above trying to suggest guilt on the part of another employee, by way of innuendo rather than outright accusation.  He was not a reliable witness, and indeed at times seemed unable to distinguish between truth and fiction.”

10.	R/97 was a copy of a letter which bore to be written on behalf of “Nicolson Kiltmakers”, providing a quotation for an established customer of the Respondent’s who was a Pipe Major and who had not knowingly transferred his business away from the Respondent.  The original had been signed by the Claimant.  It provided clear evidence of the Claimant diverting business away from the Respondent and passing off the other business as that of the Respondent.

11.	Finally, at paragraph 70 of the First Tribunal judgment, they stated:

“Plainly the claimant’s conduct directly led to his dismissal.  The conduct in question was (a) deliberately engineered financial irregularities, such that the business was deprived of money due to the respondent company (b) chaotic management of the finances of the business, for example failure to process customer’s orders, and (c) deliberate failure to set the record straight on particular issues, when asked to do so.  Accordingly, and only because these are very exceptional circumstances, the Tribunal has decided to award nothing to the claimant.  It considers that it would not be just and equitable to award money to the claimant, when his conduct has contributed 100% to his own dismissal.”

12.	The Claimant represented himself before the Tribunal.  The Respondent was represented by Mr Khan.

Claimant’s form ET1
13.	In his form ET1, the Claimant asserted that he had been unfairly dismissed by way of “instant dismissal, for alleged bad paperwork.”  That was, he claimed, against a background which showed that Mr Chalmers had wanted to force him into leaving so that he would not have to pay him redundancy money.  At box 5.7, which is where a claimant is required to specify the remedy sought in a claim for unfair dismissal the following appears:

“Please tick the box to say what you want if your case is successful:”

The Claimant ticked option (c) indicating that he wanted “Compensation only”.  The two other options set out at box 5.7 are (a) reinstatement, and (b) re-engagement and compensation.

Respondent’s form ET3
14.	In their form ET3, the Respondent refers to the Claimant being in a position involving a considerable level of trust, to his conduct and performance having given rise to serious concerns regarding his book-keeping and administration, to his having made material omissions from accounts, and to their having discovered, shortly before the meeting at which he was dismissed, that he had engaged in further unacceptable business practices which involved instances of apparent false accounting.  They stated that he had been guilty of gross misconduct and submitted that even if his dismissal was found to have been unfair, any award of compensation should be reduced to nil.

15.	The Claimant was, accordingly, put on notice by the Respondent that they would be countering his case by relying on conduct on his part which involved breach of trust and apparent dishonesty, which could properly be characterised as gross misconduct and was so bad that, whatever the outcome of the issue as to whether or not he had been fairly dismissed, he should not receive any monetary award.

The Second Tribunal judgment
16.	The Tribunal refused the Respondent’s application for an award of expenses.  The reasons for that refusal appear from paragraphs 5 -8 inclusive in the Second Tribunal judgment.  Those reasons can be summarised as being:

-	although the Claimant was found to have lied to the Respondent, he was not found to have lied to the Tribunal;

-	the Claimant had not built his case on a collection of lies;

-	the Claimant had succeeded in establishing that he had been unfairly dismissed: “in view of that unanimous finding there can be little merit in this application” (paragraph 5);

-	Mr Chalmers “completely ignored the statutory provisions which were applicable” (paragraph 6);

-	There was “a clear finding that he (Mr Chalmers) lied on oath to the Tribunal about one very significant matter.  Reference is made to paragraphs 61 -63 of the judgment” (paragraph 6);

-	Had the Claimant been legally represented “he might have been told that he risked obtaining no money” (paragraph 7) but as it was, the Claimant had plainly expected to receive compensation;

-	The Claimant said he had ACAS advice that he had an “open and shut case of unfair dismissal” (paragraph 7);

-	The Respondent’s first legal representatives withdrew from acting “which may indicate that they took that view too” i.e. the view that the Claimant had an open and shut case (paragraph 7);

-	There was nothing to suggest that the Claimant proceeded with his claim in the “clear knowledge” that it had no merit nor a prospect of financial reward (paragraph 7);

-	Claimants are, in any event, entitled to seek “simple findings of (unfair dismissal) without the objective of obtaining money” (paragraph 7);

-	An Employment Tribunal must bear in mind “the fact that there are thousands of unrepresented claimants who cannot afford to take legal advice, and who persevere with claims where the applicable law is hard to understand.  They should not be discouraged from asserting their rights by costs orders, which are the exception rather than the rule in Employment Tribunals” (paragraph 8).

17.	For those reasons, the Employment Judge concluded “it cannot be said that this claimant was acting unreasonably in proceeding with a claim for automatically unfair dismissal” (paragraph 8).

Relevant law
18.	Paragraph 40(2) and (3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (“the 2004 Regulations”) provide:

“40 (1)…….
(2) A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman …..any of the circumstances in paragraph (3) apply.  Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.
(3) The circumstances referred to in paragraph (2) are where the paying party has, in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.”

19.	In Daleside Nursing Home Ltd v Mrs C Mathew UKEAT/0519/08/RN, Wilkie J discussed the application of reg 40 of the 2004 Regulations in case where the claimant’s central allegation that she had been racially abused was found to have been a lie.  He observed that it would be perverse of a Tribunal to fail to conclude that the making of a false allegation at a hearing before it did not constitute a person acting unreasonably (paragraph 20).  He said:

“…on the particular facts of this case it was the fact that the lie was explicit and so much at the heart of the case that, in our judgment, it is appropriate for us to conclude that this was an overwhelming case where the Tribunal has failed properly to address the point, and as a result has come to a perverse conclusion.”

20.	Dunedin Canmore Housing Association Limited v Mrs Margaret Donaldson UKEATS/0014/09/BI, is another case where a claimant had acted unreasonably in respect that her approach to her case was tainted by dishonesty.  A tribunal had found that the claimant had not been telling the truth in evidence; she had lied on oath regarding a matter which was central to her case.  The respondents having appealed to this Tribunal from a subsequent judgment refusing their application for expenses, I said:

“24. In these circumstances, as with the Tribunal in the Daleside Nursing Home case, it was perverse of the Tribunal, in its second judgment to fail to conclude that the claimant had acted unreasonably in bringing the claim.  Having made the factual findings regarding the claimant’s disclosures and the claimant herself being well aware of the materiality of the clause there was no basis at all for it to take the view that proceedings were “necessary” or that the claimant “had no alternative” but to bring proceedings to “force” the respondents into paying.  She, in short, had no business seeking to make the respondents pay her in these circumstances.  Even less was it appropriate or reasonable of her to seek to do so on a basis which she must have known to be a false one.
25. There is a flavour, in the Tribunal’s second judgment, of sympathy for the claimant as a lay person and for the difficulty she might have in paying any award.  With all due respect to the Tribunal, these matters are beside the point.  The issue was not whether a lay person could reasonably have been expected to understand the law.  It was whether she had or had not, in simple human terms, approached the essential factual matters that lay at the heart of her case honestly and reasonably.  She had not done so and these are exactly the sort of circumstances where a Tribunal has a responsibility to make it clear that it is quite unacceptable to cause expense to another party by bringing proceedings on that basis.  Then, as to the financial burden of the award, the Tribunal is entitled, in the interests of justice, to take account of ability to pay when fixing the amount; ability to pay is not relevant when determining whether or not an award should, in principle, be made.”

21.	As these cases demonstrate, an Employment Tribunal can be expected to conclude that there has been unreasonableness on the part of a party where he/she is shown to have been dishonest in relation to his/her claim and then to exercise its discretion so as to make an award of expenses in favour of the other party subject, of course, to the requirements for it to take account of the provisions of paragraph 41 of the 2004 Regulations regarding the fixing of the amount of any such award.

The appeal
22.	For the Respondent, Mr Khan submitted that the Tribunal had erred in the Second Tribunal judgment.  The decision was perverse and followed it having taken irrelevant factors into account.

23.	He submitted that the strength of the language used in the criticisms of the Claimant in the First Tribunal judgment was such as to show that the decision to make no award of expenses was perverse.  Then, in arriving at her decision, the Employment Judge had erred in stating that there was little merit in the application because the Claimant had succeeded in establishing unfair dismissal.  She had erred in taking into account the Respondent’s conduct and there was, in any event, no finding that Mr Chalmers had lied.  The fact of the withdrawal of the Respondent’s previous solicitors was irrelevant as was the speculation as to the reason for that withdrawal; there was a flavour of the Tribunal being too concerned about the Respondent’s position.  Claimants were not entitled to bring unfair dismissal claims purely for the purpose of seeking a bare declarator of unfair dismissal; the Employment Judge was in error in that respect also.  Then, her comments regarding the position of thousands of other claimants were wholly irrelevant and had no basis in any evidence before her.

24.	Mr Khan submitted that the above matters gave rise to such concerns regarding the objectivity of the Second judgment that it would not be appropriate to remit the case to the same Tribunal.  I should find that the only reasonable conclusion was that there should be an award of expenses and remit the case to a fresh Tribunal to assess the amount of that award.

25.	In the course of his submissions, Mr Khan referred to the Daleside Nursing Home and Dunedin Canmore Housing Association cases and also to Sahota v Dudley Metropolitan Borough Council UKEAT/0821/03/SM.

26.	Mr Nicolson explained that he had not received copies of the authorities until two days prior to the appeal hearing.  He thought that that was shocking; the reason why he had not got them earlier was not clear as Mr Khan indicated that they had been posted timeously.  Mr Nicolson stressed, on more than one occasion in the course of his submissions, that the lateness of the intimation of the authorities was shocking.  I adjourned after having heard Mr Khan’s submissions to give Mr Nicolson an opportunity to consider the authorities.  He confirmed that he was ready to make his submissions when I returned to court after that adjournment.

27.	Mr Nicolson had nine submissions.  First, he had delayed the presentation of his ET1 until the last day because he had thought long and hard about the possible consequences of dealing with Mr Chalmers; he referred me to an email from Mr Chalmers to a third party which post-dated the first hearing before the Employment Tribunal and contained negative assertions about him.  There had been, he said, “a lot more stuff like that” and it showed the sort of person he was dealing with.  Secondly, paragraph 6 of the Second Tribunal judgment stated that Mr Chalmers had lied on oath.  That was a serious matter.  Thirdly, he referred to paragraph 67 of the First Tribunal judgment and said that Mr Khan had taken it out of context.  Fourthly, he referred to paragraph 4 of the Second Tribunal judgment which noted that he had not acted vexatiously or disruptively.  Fifthly, he said that paragraph 4 of the second Tribunal judgment was important. Sixthly, he said that the reason for his claim was that he had gone to the Employment Tribunal to “get his name cleared” (he did not explain how that could be consistent with him having indicated, at box 5.7 of his form ET1 , that he sought only compensation).  Seventhly, at no time was he abusive or disruptive.  Eighthly, he read paragraph 8 of the Second Tribunal judgment differently; there was no problem with it.  Ninthly, he referred to a part of his written response to the Notice of Appeal where he states that Mr Chalmers owes him money; that showed that Mr Chalmers was a person who acted improperly whereas he, Mr Nicolson, regarded himself as a good and honourable man.

28.	Overall, Mr Nicolson said he was not entirely happy with some of the findings in the First Tribunal judgment but he felt that the Second Tribunal judgment had cleared up issues and showed that the Employment Judge had produced a level outcome, which he saw as fair.

Discussion and decision
29.	On the findings of the Tribunal, the Claimant was dismissed because of conduct which could be characterised as “prima facie fraudulent financial intromissions” (paragraph 59 of the First Tribunal judgment) and “prima facie amounting to fraud” (paragraph 67).  He was found not to be a reliable witness and “at times seemed unable to distinguish between truth and fiction”.  The evidence supporting the conclusion that he was guilty of gross misconduct was of “huge weight” (paragraph 67).  His conduct was deliberate; the findings show that not only was he well aware, for instance, that orders were dishonestly being diverted away from the Respondent but he considered that he was entitled so to act, it being “his” shop ( paragraph 67) and he justified it to himself as action he had to take so as to protect his family.  His conduct was evidently, in short, blatant and he was unrepentant regarding it.

30.	Against that factual background, the Claimant presented a claim to the Tribunal, describing what the Tribunal subsequently found to be prima facie fraudulent financial intromissions, as “alleged bad paperwork”.  It is, however, plain that the letter of dismissal which was handed to the Claimant set out in detail the Respondent’s concerns that it was not simply a matter of bad paperwork but substantive financial irregularity amounting to fraud that was the cause of his dismissal.  Then, once the Claimant had received the Respondent’s form ET3, he was put on clear notice that their position was as we have outlined above; they would be countering his claim by referring to conduct which involved breach of trust and false accounting and, furthermore, even if he showed the dismissal to have been unfair, would be submitting that he should, in these circumstances, receive no award of compensation.

31.	The Claimant, however, persisted with a claim which he must have known he was bringing in circumstances where he had been dismissed on grounds inferring dishonesty which were well founded.  Whilst he and the Employment Judge seemed to see it as weighing in his favour that he had made significant admissions against interest in that respect, in the course of his evidence, I do not agree that those admissions can be regarded as so doing.  Rather, it makes matters worse for him as it highlights that he brought and persisted in a claim in which he knew that he had been dishonest and that that had caused his dismissal.  It is correct that he did not lie on oath about those matters referred to in the First Tribunal judgment at paragraph 67 and elsewhere but it is also recorded at the end of paragraph 67 that he seemed, at times, to be unable to distinguish between truth and fiction.

32.	That then is the context in which the Employment Judge required to consider the Respondent’s application for expenses.

33.	I turn to the specific matters taken into account by the Employment Judge in reaching her decision that the Claimant did not act unreasonably.

34.	First, I agree with Mr Khan that there was no basis on which she could conclude that the fact of the Claimant having established unfair dismissal showed that there could be little merit in the application.  The question to be addressed under rule 40(3) is not whether or not the paying party succeeded in any aspect of his claim.  Such success would not, of itself, mean that he had not acted unreasonably.  A party could have acted unreasonably and an award of expenses be justified even if there has been partial (or whole) success.  It will all depend on the circumstances of the individual case.

35.	Secondly, in stating that Mr Chalmers “completely ignored the statutory provisions”, the Employment Judge implies that there is, in the First Tribunal judgment, a finding that he knew about those provisions and deliberately refrained from complying with them.  There is, however, no such finding; there are no findings about Mr Chalmers’ state of knowledge regarding the statutory dismissal procedures at all.

36.	Thirdly, although, in the Second Tribunal judgment, the Employment Judge refers, at paragraph 6, to there being a “clear finding” at paragraphs 61–63 of the First Tribunal judgment, that Mr Chalmers “lied on oath”, that is not the case.  There are no findings in the First Tribunal judgment either in paragraphs 61-63 or elsewhere that he lied on oath.  There is a reference to the Tribunal not accepting a part of Mr Chalmers’ evidence but the rejection of a witness’ evidence does not of itself imply a finding that a witness has lied.  Evidence may be rejected as unreliable or lacking in credibility for various reasons and in the case of only one such possible reason would the conclusion be that the witness lied on oath i.e. committed perjury.  The rejection of evidence does not, of itself, infer dishonesty on the part of the witness.

37.	Fourthly, the Employment Judge speculates regarding what advice the Claimant might have received had he been legally represented.  It was not appropriate for her to do so.  In any event, he had been put on notice via the Respondent’s form ET3 that he was running a risk that even if successful in establishing unfair dismissal, he might not receive any award.

38.	Fifthly, as regards the Employment Judge’s reference to the Respondent’s previous solicitors having withdrawn from acting and speculation about what might have been the reason for that, those considerations were irrelevant.  The fact that the party applying for an award of expenses previously had solicitors that withdrew from acting does not point to the Claimant having acted unreasonably.  Further, the fact of such withdrawal does not necessarily imply a refusal to accept advice.  There are various  reasons for a solicitor withdrawing from acting which certainly include that the client refuses to accept the solicitor’s advice (which may or may not be good advice) but also include matters such as, for instance, failure by the client to pay outstanding fees, a dispute about fees or a conflict of interest.

39.	Sixthly, the Employment Judge was wrong to approach matters on the basis that it is open to a claimant to pursue an unfair dismissal claim purely for the purpose of obtaining a declaration that he was unfairly dismissed (not that that was what, according to the Claimant’s ET1, he did seek).  It may be that she had in mind that where a claimant alleges discrimination, there is provision in the relevant legislation for declaratory orders to be made.  However, so far as unfair dismissal is concerned, there is nothing in the relevant provisions of the Employment  Rights Act 1996 (sections 94, 98, 111, 112, 113, 114, 115, 116, 118, 119, and 123) to suggest that the obtaining of a declaratory order is a remedy that can be sought in an unfair dismissal claim.  There are but three possible objectives in such a claim and they are reflected in three options that are available to a claimant in box 5.7 of the form ET1.

40.	Seventhly, the factors relied on by the Employment Judge in paragraph 8 of the Second Tribunal judgment are irrelevant.  She had no apparent basis for her assertion that there are thousands of such unrepresented claimants but even if there are, she required to focus on the case before her, not what, on her speculation, might be the reaction of some members of the public if she found in favour of the Respondent.  Further, the problem in the present case was not that the Claimant found the law hard to understand.  What emerges from the findings in the First Tribunal judgment was that he found it hard to understand that there was anything wrong with the way he had conducted himself; that did not require any understanding of the law.  It only required a very basic understanding of the need to be honest and not to breach trust, particularly in financial matters.

41.	I am, accordingly, satisfied that the decision that the Claimant did not act unreasonably was perverse.  It was plainly wrong.  It was reached on the basis of irrelevant considerations.  It failed to take proper account of the context which was as I have set out above.  The only conclusion open to the Employment Judge was that the Claimant acted unreasonably in bringing the claim at all and, having brought it, by persisting with it once he had it spelt out to him that the Respondent would be relying on fraud on his part and submitting that, on any view, he should receive no award of compensation.  The unreasonableness was such as would have led any reasonable Employment  Judge to conclude that an award of expenses ought to be made.

Disposal
42.	In these circumstances, I will pronounce an order upholding the appeal, setting aside the judgment of the Employment Tribunal registered on 29 September 2009 and substituting for it a finding that the Claimant acted unreasonably in bringing this claim and in continuing to conduct it thereafter and that the Respondent is entitled to an award of expenses..

43.	As regards remit, I am persuaded that it is appropriate that the remit should be to a fresh Tribunal.  I do so for two reasons.  Firstly, there is no apparent justification for the Employment Judge having labelled Mr Chalmers as having lied on oath and the Respondent is, accordingly, entitled to have reservations regarding the achievement of apparent objectivity if the remit is not to a fresh Tribunal.  Secondly, I accept that there is a strong flavour in the second Tribunal judgment of the Employment Judge being unduly sympathetic to the Claimant which, again justifies the Respondent in having reservations about apparent objectivity if the case is remitted to her.

44.	I will, accordingly, in addition to the above, order that the case be remitted to a fresh Employment Tribunal to assess the amount of the order for expenses in favour of the Respondent.