Schaathun v Executive & Business Aviation Support Ltd

For a costs order based on unreasonable conduct under rule 40(3), the conduct must meet a high threshold. An enquiry whether an interpreter might be available does not, without more, amount to a request that the tribunal provide one or to an application for an adjournment.

A tribunal must construe the party’s communication fairly. It cannot treat the resulting adjournment as an entirely foreseeable consequence where the party was not asked whether they would proceed without an interpreter. Although costs decisions attract substantial appellate restraint, an order founded on that impermissible construction and a perverse finding of unreasonable conduct must be set aside.

The Claimant’s full Employment Tribunal hearing was postponed after she emailed shortly before it was due to begin, asking whether, if possible, a Norwegian interpreter could be present. The Respondent sought its costs of the postponement under rule 40 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

Employment Judge Lewis held that the email was a request for the Tribunal to provide an interpreter. He found the request unreasonable and ordered the Claimant to pay £2,500 costs. Her application for review was refused. She appealed to the Employment Appeal Tribunal, contending that her email was only an enquiry and that she had neither sought nor caused an adjournment.

1. Appeal allowed. The costs decision and the order requiring the Claimant to pay £2,500 were set aside.

2. The Employment Judge erred in construing the email as a request that the Tribunal make a Norwegian interpreter available. Read naturally, it asked only whether an interpreter could be present if possible. It did not request an adjournment if that could not be arranged, nor did it expressly ask the Tribunal to supply an interpreter. The Respondent’s solicitors had understood the email in the same way.

3. The finding that an adjournment was an entirely foreseeable consequence was unsupported by the facts and was perverse. The Claimant was not asked whether she would conduct the hearing without an interpreter or whether she intended to provide one herself. When later asked whether she required an interpreter, she said that she did not.

4. The Court applied the high threshold for conduct to be properly characterised as unreasonable for the purpose of rule 40(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. A non-native speaker with good, though imperfect, English could not be said to have conducted proceedings unreasonably merely by making this enquiry. The enquiry did not inevitably require an adjournment.

5. Employment Tribunals have a wide discretion in costs matters and appellate intervention will be rare. However, the costs award here was ill founded and perverse because its factual premise and finding of unreasonable conduct could not stand. In view of that conclusion, it was unnecessary to determine the separate challenge to the amount awarded.

• Employment Appeal Tribunal: allowed the Claimant’s appeal and set aside the Employment Tribunal’s costs order.

• Employment Tribunal: Employment Judge Lewis ordered the Claimant on 6 September 2011 to pay the Respondent £2,500 costs. The Claimant’s review application was refused on 30 September 2011.