The claimant, who was employed as an internal auditor for more than four years by the respondent was dismissed by reason of an irretrievable breakdown of trust and working relationship.  This arose as a result of the claimant seeking flexible working arrangements which were regarded as having an operational impact on the business as a whole.  During the claimant’s employment, she had stated her inability to trust her line manager, Mr Hammond, due to the issues with the flexible working arrangements.

On foot of the decision to dismiss, the claimant brought a series of complaints to the Employment Tribunal including unfair dismissal, unlawful discrimination, harassment and victimisation.   The ET held that the complaints were not well founded with the exception that the decision to dismiss was procedurally unfair.  This was because the chair of the disciplinary panel, Sue Grant, had been heavily involved in previous decisions relating to the claimant such as the flexible working arrangements. On foot of this finding, the ET only provided for a basic award with no compensatory award.  They also ordered that the claimant pay £20,000 towards the respondent’s costs.  The claimant appealed these findings.

The EAT agreed with the findings of the ET that there had been no discrimination, harassment or victimisation in the decision to dismiss.  Instead, they agreed that it had been because the relationship had irretrievably broken down.  They agreed that the decision to dismiss was procedurally unfair and the appeal on liability was dismissed.

On the costs issue, the ET had made the costs order against the claimant as they stated she had withdrawn unreasonably from a judicial mediation, that she had failed to take advice and accept a settlement of £50,000 and that she had failed to accept a settlement after the merits judgment had been delivered.

The EAT referred to the decision in Vaughan v London Borough of Lewisham [2013] IRLR 713 which states that the status of the claimant must be taken into account.  It was accordingly held that the fact the claimant had refused to settle the claim after the merits judgment should not have been considered as it would have removed the right of the claimant to appeal.  Therefore, the EAT held that the ET had erred in law on the issue of costs.   The EAT provided a useful reminder of the position of the court when making a costs order stating:

“The question for the ET is whether the course taken was reasonable; the ET must be careful not to substitute its own view but rather to review the decision taken by the litigant”

Accordingly, the EAT held that the ET had erred in law in making the costs order as it had used its own view rather than viewing it through the prism of the claimant.  The case was remitted back to the ET for a fresh decision on costs.

Practical Lessons

Two key points can be taken away from this case.  In terms of liability, employers should be cognisant of who is going to conduct any disciplinary meeting.  If the size of the organisation allows for someone who is removed from the dispute or issue, then they should be selected to avoid any procedural unfairness.

The second point is on the issue of costs and is directed towards Tribunals of first instance.  In determining whether a claimant has acted unreasonably, the Tribunal should be careful in ensuring they examine the band of reasonable responses for the claimant and not what the Tribunal may feel is reasonable.  This is especially true when a claimant may be a litigant-in-person.
https://www.gov.uk/employment-appeal-tribunal-decisions/mrs-s-solomon-v-1-university-of-hertfordshire-2-paul-hammond-ukeat-0258-18-da