Jones v Standard Life Employee Services Ltd

On an appeal from an award of costs or expenses, intervention requires an error of law. The Employment Tribunal has a broad discretion. An appellate court will not interfere unless a legally relevant matter was omitted, an irrelevant matter was considered, or the decision was perverse.

Under rule 40(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations, the inquiry is narrowly directed to expenses incurred as a result of a particular adjournment and the immediate cause of that adjournment. A tribunal may consider the wider litigation context, but it is not obliged to postpone a costs decision pending a related appeal where that later outcome would not affect responsibility for the adjournment costs.

The Claimant sought a late adjournment of a hearing after an Employment Judge refused his application for production of documents. The request was made at 4.55 pm on the Friday before a Monday hearing. The Employment Tribunal at Edinburgh granted the adjournment but ordered him to pay the Respondent’s expenses of £880, incurred through attendance and representation at the abortive hearing.

The Claimant appealed to the Employment Appeal Tribunal. He contended that the costs decision was premature because the Tribunal should have awaited the outcome of his appeal concerning the document-production decision. The central issue was whether the Tribunal erred in law by determining responsibility for adjournment expenses immediately.

1. Appeal dismissed. The Employment Tribunal made no error of law in ordering the Claimant to pay £880 in expenses arising from the adjournment.

2. Rule 40(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations directs attention to costs or expenses incurred as a result of the relevant postponement or adjournment. The inquiry is therefore a narrow one: what caused that particular adjournment and the resulting expense.

3. The Tribunal was entitled to find that the immediate cause of the Respondent’s avoidable expense was the Claimant’s late Friday application. The Claimant had known of the refusal of his document application since the preceding Wednesday. The finding that he was at fault in waiting until it was too late to cancel the Monday hearing had a proper evidential basis and was not perverse.

4. The possible success of the separate appeal concerning documents did not undermine that conclusion. Even if the documents ought to have been disclosed, that would not explain the timing of the disclosure application or the late adjournment request which caused the costs.

5. A tribunal is entitled, but not obliged, to take the wider litigation context into account when deciding whether to determine adjournment costs immediately. It was not required to defer its decision until the related appeal had been resolved. No irrelevant consideration, omitted mandatory consideration, or perversity was established.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal from the Employment Tribunal at Edinburgh.
• Employment Tribunal at Edinburgh: after adjourning the 4 February hearing, ordered the Claimant to pay the Respondent £880 in expenses caused by the adjournment.