Francois v Castle Rock Properties Ltd (t/s Electric Ballroom) (Practice and Procedure : Costs)

An Employment Tribunal has no power to award interest as such on a compensatory award for unfair dismissal. An allowance for delayed receipt may, in principle, form part of the assessment of compensation, but the issue requires a proper evidential and procedural foundation. A Tribunal is not generally required to raise it of its own motion.

Where costs are sought because a representative was slow or inexperienced, the Tribunal must make clear and reasoned findings. It should identify the delay, its cause, and why the conduct was unreasonable. Inexperience, taking points which an experienced advocate might not take, or delay in itself does not automatically justify costs.

The claimant succeeded in his unfair dismissal claim before the London Central Employment Tribunal, which awarded £970.50 compensation. His discrimination and victimisation claims failed, and the Tribunal ordered him to pay £250 towards the respondent’s costs, relying on the conduct of his representative.

The claimant appealed against the absence of any allowance for delayed receipt of loss of earnings and against the costs order. The appeal concerned whether compensation for delayed receipt had to be considered without evidence or argument, and whether the Tribunal had sufficiently reasoned its conclusion that the representative had acted unreasonably.

1. Delayed receipt. The Tribunal was right not to award interest as part of the compensatory award. Binding authority established that there was no power to award interest as such in an unfair dismissal compensation award, and no statutory power had subsequently been conferred.

2. The decision in Melia v Magna Kansei Ltd did not require the Tribunal to make an allowance in this case. That decision concerned an adjustment for delayed receipt where compensation for future loss was also being assessed. Here, the point had not been argued below and there was no evidence establishing any loss caused by delayed payment. A claimant cannot be presumed to have suffered such loss, and the Tribunal was not required to investigate the issue of its own motion.

3. The Tribunal declined to decide whether compensation for delayed receipt could or should be awarded where no compensation for future loss was granted. That question was left for a case in which it was properly raised and supported by evidence. The first ground of appeal was dismissed.

4. Costs. Under rules 40(2) and 40(3) of the Employment Tribunal Rules 2004, unreasonable conduct is a gateway to the costs jurisdiction, but the making of an order remains discretionary. Clear and reasoned findings are required where costs are sought because a representative was slow. The Tribunal must identify the delay, its cause, and why the conduct was unreasonable.

5. Less experienced or unpaid representatives may be slower or may take points which a specialist advocate would not take. That does not by itself amount to unreasonable conduct. No sufficient findings explained why opposition to late documents, or time spent photocopying, was unreasonable or attributable to the claimant’s representative. The £250 costs order was therefore set aside.

1. Employment Appeal Tribunal: The appeal against the failure to allow for delayed receipt was dismissed. The £250 costs order made by the Employment Tribunal was set aside.
2. London Central Employment Tribunal: The claimant succeeded in unfair dismissal and received compensation of £970.50. His discrimination and victimisation claims failed, and a £250 costs order was made against him.