Transcription

• Speaker #0

  Today in the Lefebvre HR and Employment Law podcast, we're discussing the Employment Appeal Tribunal judgment in the case of Sivanandan, an independent office for police conduct, in which the Employment Appeal Tribunal was asked to determine whether a costs application can be the subject of an unless order. Although the Employment Appeal Tribunal rules do not specifically exclude the possibility that a costs application might be the subject of an unless order, the Employment Appeal Tribunal had previously noted that it would be rare for such an order to be consistent with the overriding objective of justice, and that it would be unlikely to be a proportionate step in most proceedings. In this case, a litigant in person brought direct and indirect sex and race discrimination claims against the body now known as the Independent Office for Police Conduct, following her application for a role for which she was not shortlisted. The claims were also made against the company which had conducted the recruitment exercise. Following a full liability hearing, the claimant's claims were dismissed in their entirety and the recruitment company made a costs application. A tribunal subsequently gave directions in relation to the costs application, setting out that the recruitment company should provide the claimant with a summary schedule of costs by a specified date. The company did not meet the deadline and requested that the claimant agree to an extension. Declining to agree, the claimant applied for the costs application to be struck out for non-compliance with the tribunal's directions and submitted that the company had unreasonably delayed progressing its application. The tribunal refused the claimant's application and made an order which was subsequently referred to as an unless order, although this was an issue of dispute between the parties, that the company serve the claimant with a summary schedule of costs within 14 days, failure to comply with which. without a reasonable explanation being given, would result in the application for costs being dismissed without further notice. The company's representative sent the schedule approximately four hours after the deadline had expired, and on the following day made an application for relief from sanction under Rule 38, now Rule 39, of the Employment Tribunal Rules of Procedure, explaining why the company had narrowly missed the deadline, and suggesting that strikeout was not appropriate since a hearing had already been listed to hear the costs application. The Employment Tribunal granted the application for relief from sanction and issued an unless order. The claimant subsequently applied for reconsideration which was refused. The claimant appealed against the relief from sanction and reconsideration decisions including on the ground that an unless order and consequently the application for relief from sanction. could not be made in respect of a costs application. The Employment Appeal Tribunal dismissed all grounds of the claimant's appeal and held that an unless order can be made in respect of an application for costs. It noted that an unless order can be made in respect of a claim or response or part of it. Decisions of a tribunal are either case management orders or judgments, the definition of which includes a decision which finally determines a claim or part of a claim as regards liability, remedy, or costs. The Employment Appeal Tribunal held that this wording in the Employment Tribunal rules demonstrated that the concept of part of a claim may include an application for costs and it is irrelevant whether the cost application is made in or with the original claim form or later on in the proceedings. The Employment Appeal Tribunal found that the same approach must apply to the concept of part of a response and there is no reason why this should not in the same way. include an application for costs made by a respondent, whether in its original response or later. Therefore, wherein unless order has been made in respect of a direction relating to a cost application and the party concerned fails to comply within the deadline set by the order, it follows that that party is able to apply for relief from sanction under the same rule and consequently a party can also apply for reconsideration of any decision taken on an application for relief from sanction. Look out for further episodes in this series to stay up to date on all things HR and employment law related.