Labour & European Law Review Weekly Issue 400 17 December 2014
The law says that tribunals can make a costs order when a claimant has paid a fee for a claim (or an appeal) which is decided either wholly or partially in their favour. In Old v Palace Fields Primary Academy, however, the Employment Appeal Tribunal (EAT) held that it would only order half the hearing fee and none of the lodgement fee, despite the fact that Mrs Old was partially successful in her appeal.
Ms Old was a teacher at Palace Fields Primary Academy. In July 2012, she became aware of an incident of apparent bullying in which a pupil had written “fat bitch” on the image of a special needs pupil in her class.
The class teaching assistant, Ms Thorpe, said that Ms Old expanded the image and called a number of pupils over to see it. Ms Old refuted that account but following an investigation, the disciplinary panels accepted Ms Thorpe’s evidence and dismissed Ms Old for gross misconduct.
The tribunal judge held that the dismissal was fair.
Grounds of appeal
- The school failed to disclose to her two potentially helpful witness statements taken from year 6 children, which were also not shown to the disciplinary panel
- She was not shown minutes of meetings which were considered by the panel, even though she was told it would not see them
- A governor’s report containing allegations that were not relevant to the charges she was facing was shown to the panel.
The EAT agreed with the tribunal judge that it was reasonable for the disciplinary panel to believe that it had all the relevant information before it, even though two witness statements were not shown to it.
However, it disagreed with the judge’s conclusion that that failure had not impacted on procedural fairness. Instead, it held that there was still an obligation on the school to disclose material which might have supported Ms Old’s case once it has been generated in the course of the investigation. That was a question of fairness of procedure. Although non-disclosure does not automatically render a dismissal unfair, the EAT was satisfied that it was not approached correctly by the tribunal judge in this case.
It also criticised the tribunal judge for not addressing the question of whether there was a material procedural irregularity in relying on the minutes of meetings which Ms Old was not permitted to see and had not therefore been given the opportunity to comment on them. It dismissed the final point on the basis of evidence from the chair of the disciplinary panel that it took no account of the allegations in the governor’s report when coming to their conclusion.
Although it allowed the appeal, the EAT did not make an order for recovery of the £400 issue fee that Ms Old incurred and only ordered the school to pay half of the £1,200 hearing fee. This, said the EAT, was because it had a “wide discretion as to whether or not to order some or all of the fees paid” and because Ms Old had only been “partially successful” (it had not overturned the original decision, but had instead remitted the case back to the same employment judge to be reheard).
The EAT decided that it had a wide discretion about whether to order the parties to pay the fees. If Ms Old had been completely successful (i.e. by having the tribunal decision overturned) then it is hoped that the EAT would have ordered the employer to pay most or all of the appeal fees incurred.
This decision should not be seen as a precedent for a party who is only partly successful to only be able to recover part of the tribunal fees incurred. Rule 76 of the Employment Tribunal Rules state that a party may be ordered to pay costs “where the receiving party had paid a tribunal fee for a claim…and has wholly or partly won the claim”. An application for the tribunal to order the employer to pay the full hearing and issue fees should still be made in a case where the employee is only “partly” successful.