EAT holds that Tribunal was wrong to impose costs order on Claimant (Solomon v (1) University of Hertfordshire (2) Paul Hammond – UKEAT/0258/18/DA)
In the case of Mrs S Solomon v (1) University of Hertfordshire (2) Paul Hammond UKEAT/0258/18/DA the Employment Appeal Tribunal (“EAT”) held that the Employment Tribunal had erred in deciding to make an award of costs of £20,000 against the Claimant, dismissing the costs order.
The facts in Solomon v University of Hertfordshire & anor
Mrs Solomon (the ‘Claimant’) was employed by the Respondent from 1 November 2010 as an internal auditor. The Claimant was a black woman of Caribbean origin. At the start of her employment she had two children. She had two more children whilst employed by the University of Hertfordshire (the 1st Respondent’) and was on maternity leave from 25 February 2013 until 13 August 2013 and against from 6 May 2014 until 18 December 2014. Following a hearing on 27 May 2015 she was dismissed with 3 months’ notice.
When the Claimant commenced employment with the 1st Respondent, her manager had concerns about the Claimant’s performance which started during her probationary period and continued until he retired in 2012. Concerns included the Claimant’s timekeeping, sickness absence and the time taken to write reports and the quality of the reports written.
On 16 September 2011 the Claimant applied for flexible working. It was agreed that she would work in the office from 9.30-2.30 every day and work the rest of her hours from home. This was agreed for a period of three months. In June 2012 Mr Hammond (the ‘2nd Respondent’) took over as the Claimant’s manager. In July 2012 the Claimant informed him of her pregnancy and from November 2012 due to complications, the Claimant worked on a project where she worked from home for 25 hours a week but remained on full pay. In June 2013 the Claimant made a further flexible working request. This was rejected by the 2nd Respondent who felt that the Claimant was not turning around the volume of work to be expected of a full-time member of staff. He was also concerned that there was not enough work for the Claimant to do at home. The Claimant appealed and her appeal was allowed. New arrangements were put in place for a three-month period, but again there was concerns about the Claimant’s timekeeping and absences. Then on 13 November she informed the Respondent she was pregnant again.
On 9 December 2013 the 2nd Respondent wrote to the Claimant explaining that the working arrangements were not working well. He offered the Claimant part time hours and said the maximum number of hours she could work from home every week would be 7. The relationship between the Claimant and the 2nd Respondent was becoming increasingly strained.
In January 2014, another arrangement was put in place with the Claimant dealing with the 1st Respondent’s HR manager. She was allowed to work from home for 11 hours each week and was moved to an office in a different building away from the 2nd Respondent.
A workplace mediation between the Claimant and the 2nd Respondent took place on 3 December 2014 but was not entirely successful. The 2nd Respondent still had concerns about the Claimant’s work and the Claimant felt that the 2nd Respondent was setting her up to fail. At a meeting on 13 April both the Claimant and the 2nd Respondent said they found it difficult to see how they could take their working relationship forward.
The 1st Respondent then decided to hold a hearing under their disciplinary procedure. The 2nd Respondent wrote a report about the Claimant raising various concerns including her sickness absence and the fundamental breakdown in their working relationship and that a possible outcome was that the Claimant could be dismissed. A hearing took place on 27 May which was chaired by Ms Sue Grant (who had been heavily involved in previous decisions concerning the Claimant). By a letter dated 1 June 2015 the Claimant was dismissed by reason of the ‘fundamental and irretrievable breakdown of the working relationship and breakdown of trust’. The Claimant’s appeal against her dismissal was dismissed on 13 July 2015.
The Claimant went on to bring claims in the Employment Tribunal (the ‘ET’) for discrimination, harassment and victimisation based on the protected characteristics of race, pregnancy and maternity in respect of 38 separate allegations.
The decision of the Employment Tribunal
The ET found that there was very little evidence presented in terms of race discrimination and said the case was ‘principally one of sex discrimination and pregnancy and maternity discrimination along with unfair dismissal’.
They went on the find that the 2nd Respondent had not discriminated against or harassed the Claimant at all. It also acquitted the 1st Respondent of unlawful conduct and harassment. It found that there were genuine concerns about performance and that the Claimant was never able to prove that the flexible working arrangements worked, both in terms of the quality and output of work produced. The 2nd Respondent rightly had concerns about the impact on the rest of the team and the difficulties working from home gave rise to in what was ultimately a client-facing role.
The ET therefore found that the 2nd Respondent had been entitled to refuse the Claimant’s flexible working request and that he had not been discriminatory in offering the Claimant a part time role when it was clear she was struggling with full time work.
Whilst none of the Claimant’s discrimination claims succeeded, the ET did find that the Claimant’s dismissal was procedurally unfair because the disciplinary panel had been chaired by Sue Grant, despite the fact that the reason for her dismissal (the irretrievable breakdown of her relationship with the 2nd Respondent) had been a potentially fair one. The Claimant was awarded £1,900 as a basic award, but the ET declined to make any compensatory award.
The Claimant went on to appeal the ET’s decision in the Employment Appeal Tribunal (‘EAT’) both in terms of liability and costs.
The decision of the Employment Appeal Tribunal
The EAT held that the ET did not err in law when dismissing the Claimant’s complaints of unlawful discrimination, victimisation and harassment. The Claimant’s representatives attempted to argue before the EAT that the ET has not dealt adequately with the burden of proof and the drawing of inferences when deciding the Claimant’s case. Ordinarily, a Claimant must provide evidence of a prima facie case of discrimination, following which the onus is on the Respondent to prove that there was no discrimination. In this case, it was argued that the ET accepted the Respondent’s explanations without any serious scrutiny. In addition, it was argued that the ET failed to draw inferences from the Respondent’s refusal to allow the Claimant to work flexibly, amongst other things.
The Respondent’s representatives argued that the ET was not obliged to follow a two-stage approach where it could make positive findings of fact on the evidence. The EAT held that as the Respondent had demonstrated on the evidence that the protected characteristics had played no part in their decision to dismiss the Claimant, whilst the ET had not expressly stated how they had applied the burden of proof provisions, its approach clearly emerged from its reasons when reviewed as a whole and accordingly there was no error in law and the Claimant’s appeal on liability was dismissed.
However, the EAT did find that the ET had erred in their approach to the question of costs. In determining whether the Claimant’s conduct was unreasonable they should not have substituted their own view, but rather should have asked whether the Claimant’s conduct was within or outside the range of reasonable responses. Consequently, the ET had not correctly applied the law and the Claimant’s costs appeal was allowed.
Our solicitors’ views on the case of Solomon v University of Hertfordshire & anor
Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comments on the case: “The case highlights that when considering a costs order pursuant to rule 76 of the Employment Tribunals Rules of Procedure, a ET should review the decision taken by the party and apply the range of reasonable responses test, not substitute its own view.”
The decision of the Employment Appeal Tribunal in Solomon v University of Hertfordshire & anor UKEAT/0258/18/DA can be found here.