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Employment Tribunals decision between Suzanne Martin and Brain Games
Here are details of a tribunal that Suzanne Martin lost/quit after she was ordered to show her accounts. Guess why she was let go?
Case Number: 2200371/2001
THE EMPLOYMENT TRIBUNALS BETWEEN
Applicant Miss S Martin
Respondent Brain Games Network Plc0
DECISION OF THE EMPLOYMENT TRIBUNAL
The application is dismissed on withdrawal by the Applicant.
Date and place of Order: 27 February 2002 London Central
Date sent to the parties: 1st March 2002
Case Number, 2200371/01
THE EMPLOYMENT TRIBUNALS BETWEEN
Applicant Ms Susanne Martin
Respondent Brain Gaines Network Ltd
DECISION OF THE EMPLOYMENT TRIBUNAL
HELD AT: London Central
ON: 17 May 2002
CHAIRMAN: Mr B C Buckley
MEMBERS: Ms S A Thew, Mr M Morgan
For Applicant: Did not attend and was not represented
For Respondent: Mr M Dossa, solicitor
The unanimous decision of the Tribunal is that the Applicant must pay the sum of £6,286.25 to the Respondents in respect of their costs of these proceedings, inclusive of VAT.
By her Originating Application dated 4 May 2001 the Applicant presented a complaint that she was unfairly dismissed from her employment with the Respondents as Chief Executive Officer from July 2000 to 9 February 2001. She claimed that her dismissal was unfair because it was for having made protective disclosures within the meaning of section 43(a) of the Employment Rights Act 1996. She claimed that she brought to the attention of the Respondents her concerns regarding financial operations within their business and the actions of certain senior people in the Respondents' organisation. She claimed that her dismissal was automatically unfair by virtue of section 103(a) of Employment Rights Act 1996. She claimed that she had suffered loss and damage and injury to her feelings by reason of the Respondents' actions. She also claimed that the dismissal was in breach of her contract of employment, for which she claimed damages.
2. By their Notice of Appearance dated 31 May 2001, when represented by solicitors, Simon Muirhead & Burton, the Respondents alleged that the Applicant resigned from her post on or about 7 February 2001. They maintained that her conduct fell well below the standard expected of a competent Chief Executive in that she failed to account properly for proceeds of a championship chess event held by the Respondents in October 2000. It was alleged that she failed to organise the event with requisite degree of skill, whereby losses were incurred. They alleged that she concealed information from the Respondents and signed cheques in breach of mandates. They alleged that she made false accusations against persons associated with the Respondents of criminal offences. They maintained that her alleged protected disclosures were entirely misplaced and she had no grounds for making such allegations. They alleged that the disclosures were made in bad faith in an attempt to divert attention from her own serious failures.
3. The full merits hearing of the Applicant's complaints was listed for 14 and 15 January 2002. The Respondents changed solicitors and instructed Atlantic Law, their present solicitors, on Wednesday 8 January 2002. On the advice of those solicitors the Respondents applied successfully for a postponement of the full merits hearing and on 14 January 2002 a Chairman (Mr D Latham) gave directions for the future conduct of the case.
4. The issue identified as the only issue in the case was the claim under section 103(4) of the Employment Rights Act 1996 for unfair dismissal. Claims under section 47 of the Act of being subjected to a detriment and the claim for breach of contract were dismissed. The Chairman directed that there be a Preliminary Hearing in relation to a jurisdictional issue, which he identified, namely as to whether the Applicant was an employee of the Respondents. The Preliminary Hearing of that issue was directed to take place on 14 and 15 February 2002. Directions were given with regard to disclosure of documents by the Applicant, including a copy of the profit and loss account of Susan Martin & Associates up to March 2001, a copy of the tax return of the Applicant and/or Susan Martin & Associates for the year ended 5 April 2001 and a copy of all VAT returns of Susan & Martin Associates for the period July 2000 to February 2001, that being the period during which the Applicant maintains she was employed by the Respondent. Further directions were given in relation to the preparation of a bundle and exchange of written witness statements for the Preliminary Hearing.
5. Despite the directions of the Chairman, the Applicant did not give disclosure of the documents referred to. This led to a good deal of correspondence and complaints to the Tribunal by the Respondents' solicitors.
6. On 13 February 2002 the Applicant's solicitors, Messrs Braishers, wrote to the Tribunal as follows:
"We write on behalf of the Applicant to withdraw the case from the Tribunal in the light of certain events that have taken place since the last hearing. On 25 January 2002 the remaining assets of the company (the intellectual property rights) was sold to a wholly owned subsidiary of the Respondent, Intellectual Leisure Ltd, a company incorporated on 18 January of this year, which in turn is now being sold to Einstein Plc for a non-cash consideration. This followed the stripping out earlier of the other half of the intellectual rights to Brain Games Asia Inc. It follows that the Respondent now has no assets whatsoever and that the disposition of the assets, for whatever they were worth, has been for a nil consideration.
In these circumstances the claim is now withdrawn because to continue would simply be a waste of money. There will be no representation for the Applicant at the hearing tomorrow."
7. By a letter dated 13 February 2002 to Messrs Braishers the Respondents' solicitors wrote as follows:
"We refer to your letter of 13 February 2002 to the Tribunal withdrawing this case on behalf of the Applicant. We are not surprised that your client has withdrawn her case since she was in flagrant breach of the order made by the Tribunal on 14 January 2002. It appears to us that she was obviously concerned that she could not claim to be an employee of Brain Games Network Ltd...because she has not paid any PAYE or National Insurance contribution from any payments made by the company to Susanne Martin Associates ......... it might well have also resulted in VAT implications...
We are however surprised that Miss Martin has used the transaction between the company and Einstein Group Plc ....... that was completed on 30 January 2002...as an excuse to withdraw her claim at the eleventh hour. She had ample opportunity to do so when the transaction was publicly announced on 25 January 2002.
Further we also strongly refute your allegations that the transaction was for nil consideration and that the company has no assets. .......... the company received £1,303,750 in marketable shares and convertible loan stock from Einstein, which is a public company whose shares are actively trading on AIM.
We intend actively to pursue the issue of costs wholly wasted by Ms Martin's frivolous application and will seek urgent enforcement of any award made ........."
8. In the light of the letter from the Applicant's solicitors, the Tribunal informed the parties that the case would be removed from the list. By a decision of the Employment Tribunal dated 27 February 2002 the Originating Application was dssed on withdrawal by the Applicant.
9. By a letter dated 7 March 2002, the Respondents' solicitors made an application on behalf of the Respondents for an order for costs against the Applicant. They wrote:-
- The Applicant's claim was frivolous and unreasonable since she was. or should have been aware at all material times that she was never an employee of the Respondent;
- the Applicant was in flagrant breach of Order dated 14 January 2002 made by Mr Latham and remained so until she withdrew her claim,
- the Applicant withdrew her claim at the eleventh hour on 13 February 2002 on grounds that were spurious and baseless. This resulted in the Respondent having incurred substantial costs in preparation for the hearing on 14 and 15 February 2002.
We enclose a copy of a letter dated 5 March 2002 to the Applicant's solicitors asking for costs, to which we have had no response to date.
Accordingly, we make an application for an Order against the Applicant for
- the Respondents' costs of £14,863.75 (inclusive of VAT);
- costs of this application;
- interest at rate, and from a period, the Chairman deems appropriate and reasonable.
We will send a copy of this letter to the Applicant's solicitors, Messrs Braisher."
The Relevant Law
10 Regulation 14 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 provides as follows:
"(1) where in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively. disruptively or otherwise unreasonably. or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and if it so decides, may make:-
(a) an Order containing an award against that party in respect of the costs incurred by another party; ..........
(3) An Order containing an award against a party ("the first party") in respect of the costs incurred by another party ("the second party") shall be
(a) where the tribunal thinks fit, an Order that the first party pay to the second party a specified sum not exceeding £10,000;
(b) where those parties agree on a sum to be pod by the first party to the second party in respect of those costs, an Order that the first party pay to the second party a specified sum, being the sum so agreed: or
(c) in any other case, an order that the first party pay to the second party the whole or a specified part of the costs incurred by the second party as assessed by way of detailed assessment (if not otherwise agreed)."
The Tribunal's Conclusion
11 Having heard evidence frorn Mr M Dossa (solicitor) and having read the Witness
Statement of Andrew Lawrence Greystoke (solicitor) on behalf of the Respondents, and having looked at the bundle of documents produced by Mr Greystoke, the Tribunal reached the following conclusions:
(a) This matter was called on for hearing today on the Respondent's application for costs. There was no attendance by the Applicant or anyone on her behalf. There has been no communication from the Applicant or her solicitors since the letter dated 13 March 2002 to the Tribunal indicating that the Originating Application was to be treated as withdrawn.
(b) The Tribunal is satisfied that the Applicant was in breach of the order for disclosure of documents made by the Chairman on 14 January 2000. The Tribunal is satisfied that following the Directions Hearing on 14 January 2002 the conduct of the case on the part of the Applicant has therefore been unreasonable.
(c) There was ample opportunity for the Applicant to comply with the order for disclosure. The case could not be properly prepared on the part of the Respondent for the Preliminary Hearing without disclosure by the Applicant as ordered by the Chairman.
(d) It was unreasonable of the Applicant to wait until 13 February 2002, the day before the Preliminary Hearing, before giving notice that she wisheci to withdraw her application. Inevitably costs would have been incurred by the Respondents in relation to the Preliminary Hearing in the intervening period from 14 January 2002.
(e) We do not find that the Applicant was acting vexatiously, abusively, disruptively or otherwise unreasonably by bringing the proceedings; she raised matters which required to be determined and there was no doubt, an argument to be considered that she was an employee. We do find, however, that since 14 January 2002, the conduct of the case has been unreasonable in the respects mentioned above.
(f) We therefore hold that an award of costs should be made in favour of the Respondents in respect of costs incurred from 14 January 2002 onwards.
(g) We have regard to the costs schedule produced by the Respondents (see page 38 of the bund(e) The surns claimed for the period 7 January 2002 to 17 May 2002, in respect of the costs charged by the Respondents' present solicitors, amount to £16,450.
12 We make the following award in respect of the sums claimed:
(a) 7 January 2002 to 14 January 2002 nil award
(b) 15 January 2002 to 14 February 2002
Atlantic Law inclusive of VAT £3,525.00
Counsel's fees inclusive of VAT £1,175.00
(c) 15 February 2002 to 17 May 2002
Atlantic Law inclusive of VAT £1.586 25
Total inclusive of VAT £6.286.25
DECISION SENT TO THE PARTIES ON 05/07/02
AND ENTERED IN THE REGISTER
FOR SECRETARY OF THE TRIBUNALS
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