Case of the week
Here’s a lesson for those who hope to achieve more compensation than they can possibly be awarded, even if they were to win their case. Rose v Jet2.com
Miss C Rose v Jet2.com Ltd
Jet2.com is the Respondent in this case so you’re probably hoping for some sun, sea and sangria, but alas, we’re staying at home in the offices of Jet2 in sunny Manchester. Hang on in there though as this is quite interesting and there is a very valuable lesson to be learned at the end.
This is a case about costs - a rarity in employment tribunals.
Background
Miss Rose worked at Manchester Airport in a large open plan office. She sat on a pod of four desks diagonally opposite her colleague, Ms Acker.
Following some considerable time off for tiredness, whereby she underwent hospital tests, Miss Rose had a welfare meeting with Mark Burns her line manager. She explained that she was upset about comments made to her by Ms Acker. He asked her for permission to speak to Ms Acker, and she agreed to it, no doubt with the intention of trying to deal with the issue informally.
She was signed off again shortly afterwards and on return was invited to another welfare meeting. At the meeting she again said she had, “a bad time with Liz and things she was saying to me”, and she gave examples of the comments. Miss Rose then decided to make a formal grievance in line with the company grievance policy.
She complained that inaction was delaying her return to work. She also complained that she had been asked to work a weekend, which she said was unfair and left her feeling that she was in the wrong. She complained that Ms Acker had intimidated her, and that the company did not support her.
She complained that Ms Acker would snap at her, she would speak abruptly if colleagues approached her [Miss Rose], she complained that miss Rose was allowed to sit all day, she made derogatory comments about Miss Rose's late father’s name and she told the her to shut up and muttered under her breath.
Following an investigation the grievance outcome was given to Miss Rose. It was not upheld on the grounds that Ms Acker had not been malicious, and whilst there was an appreciation of Miss Rose being upset, the conclusion drawn was that mediation would be beneficial.
Shortly afterwards Miss Rose resigned and made a number of claims in the employment tribunal:
Sex discrimination, namely, unlawful harassment,
constructive unfair dismissal and
breach of contract.
It is fair to say at this point that she did not have a strong case.
There followed preliminary hearing whereupon the sex discrimination claim was struck out. The unfair dismissal and breach of contract claims could go ahead and were listed for full hearing.
The effect of the preliminary judgment had a major impact on the level of damages Miss Rose would be awarded if her claims were successful, because the sex discrimination element had the potential to inflate any tribunal award way beyond the economic losses she could claim for unfair dismissal and breach of contract.
Generally claimants in tribunal cases are ordered to provide a statement of their loss - we call it a ‘Schedule of Loss’. Miss Rose had duly supplied a schedule setting out what she hoped to recover for each head of claim. The losses she was claiming in respect of the two remaining claims totalled £4,558.
Following the preliminary hearing the Judge ordered a fresh Schedule of Loss be produced, obviously to disregard the discrimination element. Now, in anybody’s book, that would be a simple exercise - just cut out the discrimination part of the claim and it leaves you with £4,558. That is the maximum she hoped to get - her best case scenario. The tribunal could award no more.
The revised schedule
However, the updated schedule had an additional claim for £7,240.10 which was apparently for unpaid wages. Understandably Jet2 questioned this additional £7k. It wasn’t previously claimed, Miss Rose had not asked to add it to her claim and it was seriously out of time to include as a claim in any event. So now she’s looking for just under £12k.
Costs for the case were ticking up so Jet2, not wishing to spend any further money on the case, offered the full £4,558 she was asking for - her best case scenario. That’s a very generous offer as her case was flimsy to say the least. The offer was made on a commercial basis and without any admission of liability. Jet2 also confirmed that if the offer was refused they would claim costs against her.
She refused and ultimately lost her claim for unfair dismissal and breach of contract. Jet2 made an application for costs and another hearing was held to determine the issue1. It was held that her refusal of the offer amounted to unreasonable conduct. The Judge said:
The addition of unpaid wages to the schedule of loss after the claimant was required to remove those elements attributable only to her discrimination complaint (after it had been struck out) is particularly unimpressive.
The claimant has obstinately pressed for an unreasonably high award despite its excess being pointed out and despite a warning that costs might be asked against that party if persists with the litigation.
The costs award
Jet2 produced a Schedule of Costs to the tune of £51,348.13, although their costs application was limited £20,000. I can see why they were keen to settle on a purely commercial basis. Commercial settlements are often made in litigious disputes, especially in tribunals. The cost of litigation can far outweigh the benefits of successfully defending a case.
In the employment tribunal a judge has discretion as to whether to take into consideration the Claimant’s ability to pay when making a Costs Order2. Given Jet2s offer - the best case scenario for Miss Rose, and the fact that her case was very weak in any event, one should not be surprised if the full £20k was awarded against her.
However, her ability to pay was taken into consideration and she was ordered to pay just £2,500.
Lessons from this case
For anybody reading this who is contemplating making a claim here are a couple of tips:
If your case is weak and you are offered a commercial, non-admission of liability, settlement - take it, even if it is lower than you would like.
If your case is strong and you are offered a commercial settlement, without admission of liability for all the losses you are claiming - bite their hand off!
Do not adjust your Schedule of loss part way through a case to include losses for a claim you haven’t previously made, simply to use as a bargaining chip.
Remember costs are the exception, not the norm in tribunals, but when they are justified a tribunal will not shy away from considering them.
Jet2 have sent out a clear message in that they will go for costs if an ex-employee acts unreasonably in claiming against them. Sometimes it’s good to send out that message, notwithstanding it costs over £50k to do so!
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Thanks for reading, Best wishes
Tim
The Employment Tribunals Rules of Procedure 2013
Ability to pay
84. In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.