The claimant was employed by the respondents as the Assistant Manager of the Service Station.   His employment ended on 6th June 2019 following the expiry of two weeks’ notice.   The issue arose out of an email exchange between the claimant and one of the owners of the Service Station, Mrs Turnbull.  The nature of the email exchange was that the claimant wished to drop down to an alternative post at a lower level than assistant manager.  As this was not possible, he expressly resigned in an email giving two weeks’ notice.   Mrs Turnbull gave him a number of opportunities to reconsider his position, yet no such action was taken. It must be noted that there was no contractual or other right outlined to the claimant that he had the power to go to a lower-level post on his own volition.

The ET1 submitted by the claimant only outlined ‘unfair dismissal’ and did not make a claim for constructive unfair dismissal.  This position was reiterated at a Case Management Preliminary Hearing as well as at the start of the substantive hearing.   The Tribunal considered the issue of whether the claimant was dismissed or had resigned as a preliminary matter.  As a result of the email exchange, it was found that the claimant had resigned and therefore had not been dismissed.  This meant that the claim for unfair dismissal was dismissed.

A secondary element to the case was that the respondents, who represented themselves, sought a Preparation Time Order under Rule 72 to Schedule 1 of the Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (NI) 2020 against the Claimant.   This allows for the Tribunal to make a costs order against a party where the claim had no reasonable prospect of success, but the other party had nonetheless had to spend considerable time in preparation.  The hourly rate given for such an order is £40.   The issue is the number of hours to be given with the Tribunal having to determine what is reasonable and proportionate considering the complexity, number of proceedings and documentation required.  The claimant argued that no such order should be made considering that he had obtained advice from the LRA and two solicitors.  The Tribunal outlined that the claim of ordinary unfair dismissal had no reasonable prospect of success and that it was appropriate to make a preparation costs order.   The Tribunal also found that the case was not complex, the documentation was always within the possession of the respondents and there was no requirement to call any witnesses.  On this basis, the preparation time given was 4 hours.

Practical Lessons

This case provides an insight into the use of Preparation Time Orders and how the Tribunal considers both the questions of ordering one and how many hours should be given.   The Tribunal made it clear that the ordinary unfair dismissal had no prospect considering the resignation made by the claimant.  The fact the case was dealt with through that preliminary matter then reduced the number of hours required for the Preparation Time Order.   This decision may be borne in mind by those seeking to make such applications in future.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/