This was an appeal about an order for costs made by the employment tribunal and affirmed by the employment appeal tribunal, when the appellant, Mr Alasdair McPherson, withdrew his claim for unfair dismissal and breach of contract against his former employer, BNP Paribas, an investment bank.
The facts of this case were that the Applicant had withdrawn his claims for unfair dismissal and breach of contract on medical grounds. He had been employed in the high yield sales team between 15 January 1999 and 29 September 2000 at a basic annual salary of £100,000, plus almost as much again in bonuses and other benefits. Mr McPherson claimed that he was constructively dismissed on 29 September, his employer alleged that he was dismissed on 11 October for gross misconduct. Not long after his departure from BNP Paribas the Applicant obtained employment with another bank and continued to work for them throughout the proceedings.
The Court of Appeal affirmed the decision of an employment tribunal at Haynes on 15 July 2002 in which a costs award was made against the Applicant in respect of the whole proceedings, the bill presented by the employer totalling £90,747.
Lord Justice Mummery said the solution lay in the construction of rule 14 of the Regulations. (Industrial Tribunal (Constitution and Rules of Procedures) Regulations (Northern Ireland) 2004.)
• The crucial question was whether, in all the circumstances of the case, the claimant who was withdrawing the claim had conducted the proceedings unreasonably and not whether the withdrawal of the claim was in itself unreasonable.
• His Lordship stated that there was ample evidence to justify the tribunal's overall conclusion that there was unreasonable conduct by the Applicant in the proceedings and that the tribunal's ruling that it had jurisdiction to make a costs order against the Applicant was not perverse or otherwise wrong in law.
• He rejected the Applicant's argument that his liability for costs was limited, as a matter of construction of rule 14, by a requirement that the costs in issue were "attributable to"specific instances of unreasonable conduct by him.
• His Lordship stated that the principle of relevance meant that the tribunal had to have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that was not the same as requiring the employer to prove that specific unreasonable conduct by the Applicant caused particular costs to be incurred.
It is to be noted that the unreasonable conduct by the Applicant only began when he requested an adjournment on medical grounds in September 2001. There was continued delay and lack of co-operation down to the notice of withdrawal.