In Ibarz v University of Sheffield, the EAT has held that it has power under rule 34A of the EAT Rules 1993 to order the respondent to repay the fees paid by the successful appellant even where the fees were in fact paid by the appellant’s trade union. Although the EAT previously held in Goldwater and ors v Sellafield Ltd (Brief 1020) that no such reimbursement order may be made where the fees are paid by a third party on the appellant’s behalf, the EAT in Ibarz considered that that decision was wrong.
I was engaged by the University between 2004 and 2013 to teach modules in its Spanish and Latin American Studies course. Each academic year was divided into two semesters, with a number of weeks in between each, and I was engaged on a new fixed-term contract in each semester. When the last of those contracts expired, I sought to bring claims under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The question arose whether he could complain of his treatment over the whole period of his engagement going back to 2004. A tribunal found that I was in time to claim only in respect of the last in the series of contracts, the three-month limitation period having expired for all previous contracts. Although both sets of Regulations allow a claim to be brought in respect of a ‘series of similar acts’ at the end of that series, the tribunal did not accept that a series of separate contracts could fall within this definition. It considered that the Court of Appeal’s decision in Arthur v London Eastern Railway Ltd (Brief 819) precluded linking together discrete engagements under which there is no contractual continuity. I appealed against that conclusion to the EAT.
The EAT allowed the appeal. The tribunal had misread the decision in Arthur, which was an error of law. The tribunal ought to have considered whether the University’s consistent application of policies, practices and procedures in relation to I’s engagements, albeit across a series of discrete fixed-term contracts, amounted to a series of similar acts. This question would be remitted.
The EAT then went on to consider I’s application under rule 34A(2A) of the EAT Rules 1993 for a costs order in respect of the issue fee and hearing fee paid by I’s union on his behalf. Although the EAT in Goldwater v Sellafield ruled that no order could be made where the fee is paid by a third party, Mr Justice Wilkie considered that that decision was wrong. The EAT’s interpretation of the EAT Rules did not sit happily with other provisions that deal with the payment of fees, where the phrase ‘payable by an appellant’ and ‘the appellant has not paid the fee’ can only make any sense as a matter of practicalities if the words were read as ‘the appellant or on his behalf’. Wilkie J noted that in another EAT case, Mardner v Gardner and ors (Brief 1008), Her Honour Judge Eady QC held that it would be contrary to public policy not to award costs against a party for unreasonable conduct simply because the award would go to the other party’s insurers. Wilkie J noted that Goldwater was decided on the papers without the benefit of full legal argument and that the EAT had not been referred to the ‘apposite’ decision in Mardner. Wilkie J therefore ruled that the EAT does have power under rule 34A(2A) to order the respondent to pay the issue and hearing fees, even where those fees were not paid personally by the appellant, and so ordered the University to repay those fees to I.