Melanie Carroll-Cliffe v Pembrey and Burry Port Town Council
[2024] EAT 125
M Dowding v The Character Group PLC
24 September 2024
[2024] EAT 153
Employment Appeal Tribunal
A finance director was fired. He sued for unfair dismissal, claiming he was fired for whistleblowing. He lost the case. The court agreed the firing was fair, but said the company should redo part of its costs request because the reasons for the amounts awarded weren't clear enough.
Key Facts
- •Mr. Dowding, the finance director of The Character Group PLC, was dismissed.
- •He claimed unfair dismissal due to protected disclosures and/or ordinary unfair dismissal.
- •The employment tribunal dismissed both claims, finding the dismissal fair due to a breakdown in trust and confidence caused by Mr. Dowding's conduct.
- •The tribunal awarded The Character Group PLC costs, capped at £127,563.70, subject to detailed assessment on an indemnity basis, and a further £20,000 for costs of the costs hearing.
- •Mr. Dowding appealed both the liability and costs decisions.
Legal Principles
Employment Tribunal has the power to direct detailed costs assessment on the indemnity basis under the Employment Tribunal Rules of Procedure 2013.
Employment Tribunal Rules of Procedure 2013
Guidelines in Howman v Queen Elizabeth Hospital for awarding indemnity costs; consider whether conduct takes the situation “away from the norm”.
Howman v Queen Elizabeth Hospital UKEAT/0509/12
In unfair dismissal cases, the tribunal must apply the Burchell test (genuine belief, reasonable grounds, reasonable investigation) and not substitute its own view for the employer's.
British Home Stores Ltd v Burchell [1980] ICR 303
For costs awards, the tribunal must consider the nature, gravity, and effect of the unreasonable conduct. There is no precise causal requirement linking specific conduct and costs.
McPherson v BNP Paribas (London Branch) [2004] EWCA 569; Yerrakalva [2011] EWCA Civ 1255
When assessing whether a claimant knew or should have known a claim lacked merit, the test is based on what they knew at the outset, not with hindsight. However, trial evidence can shed light on their initial knowledge.
Radia v Jefferies International Limited [2020] IRLR 431
The value of a declaration of unfair dismissal must be considered when assessing the reasonableness of refusing a settlement offer.
Telephone Information Services v Wilkinson [1991] IRLR 148; Evans v The London Borough of Brent , UKEAT/0290/19
Outcomes
Appeal against liability decision dismissed.
The tribunal's findings regarding the fairness of the dismissal were adequately reasoned and not perverse.
Appeal against the indemnity basis for costs assessment allowed.
The tribunal did not adequately explain why the indemnity basis was warranted, failing to apply the Howman guidelines.
Appeal against the £20,000 costs of costs award allowed (regarding the amount).
The tribunal did not sufficiently explain why this specific amount was warranted, failing to fully consider the nature, gravity, and effect of Mr. Dowding's conduct at the costs hearing.