“it would be his case that despite the ostensible independence of Ms Barry (the dismissing officer) she had been prevailed upon by other members of management (and HR) to ensure that he was dismissed” (see paragraph 16). (iv) On the fifth day (19 April 2022 ), the Tribunal noted that whilst the Claimant acknowledged a particular detriment pre-dated the first alleged protected act, he would not accept its removal as an allegation of victimisation (see paragraph 21). (v) During his cross examination on the sixth day (20 April 2022 ), Mr Huntley accepted that he could not identify any of the detriments listed on the list of issues as having been caused or contributed to by his alleged protected disclosures and agreed that all of his case of detriments for having made protected disclosures should be “crossed out” (see paragraph 22). He maintained a case of automatic unfair dismissal for having made protected disclosures, but conceded he had no evidence to support this (see paragraph 24). (vi) At this point (20 April 2022 ) the Tribunal said this (at paragraphs 25-6): “25. At the conclusion of the claimant’s evidence, we felt bound to point out to him the many difficulties that there appeared to be with his case following the conclusion of his evidence. Given his evidence, the claim in relation to protected disclosure detriments could not continue. The most prominent of his remaining claims was that of automatic unfair dismissal. For this to succeed it appeared at this point that he would have to show that Louise Malyon had made a further disclosure of his one remaining alleged protected disclosure, also (on his case) that the colleague who he was to work with at Heyford Park’s evidence had been interfered with by someone in management (yet the claimant had not yet identified any material inaccuracy in the record of that evidence, nor who had tampered with it and why they had tampered with it), and that in some way Ms Barry’s decision was tainted by his protected disclosure. As the claimant accepted, he had no direct evidence to support any of these propositions, and his case seemed to rely on what he may obtain from the respondent’s witnesses in cross-examination. 26. While acknowledging that it was possible that he would end up proving this, we cautioned him to consider carefully whether this was a proper basis on which to proceed, particularly in a case which would now go part-heard and was likely to be relisted for a substantial period of time later in the year. We also pointed out to him that there remained considerable difficulties in his linking of the “something arising from disability” with the detriments that he said resulted from that “something arising”, as well as, on the face of it, considerable time problems with his disability discrimination claim. The claimant had not given any explanation of any delay in making his claim in his witness statement. In cross-examination he had said that at the relevant time he was in poor health and reliant on advice he was receiving, but it appeared that with the assistance of that advisor he had in that time produced a number of detailed and lengthy grievances, including citation of relevant case law and statute, and it was not obvious to us at this stage how he could do this at that point but not also submit an employment tribunal claim.” (vii) On the seventh day (21 April 2022 ), before adjourning the hearing to dates in November 2022, the Tribunal “repeated its observations made the previous day to the claimant about the difficulties he may face with his claim. This was with a view to the claimant taking legal advice, which, if it was to be taken, the tribunal suggested should be taken at an early stage rather than just before the resumption of the hearing” (see paragraph 32). (viii) Following an adjournment of some 7 months, the hearing recommenced for its eighth day on21 November 2022 . At this stage the victimisation and automatic unfair dismissal claims were still live and the Tribunal questioned Mr Downey (who then represented Mr Huntley) about the viability of those claims, and repeated earlier observations concerning the claim of discrimination arising from disability (see paragraph 36). (ix) On the tenth day (23 November 2022 ) the Tribunal heard from Mr Wright who had dealt with Mr Huntley’s grievances. The Tribunal again raised with Mr Downey its concern about the link between the handling of the grievance and matters arising from Mr Huntley’s disability. It urged Mr Downey to consider the point carefully head of closing submissions (see paragraph 42). (x) On the eleventh day (24 November 2022 ) the Tribunal completed the hearing of the Respondent’s evidence. It granted time to Mr Downey to discuss the claims with Mr Huntley. This resulted Mr Huntley reducing the claims he made to the effective claims which the Tribunal then adjudicated upon. In relation to this, the Tribunal said this (paragraph 47): “This late reduction in the scope of the claimant’s claims was welcome, but the respondent was right to question why it had not been done earlier, and there seemed to us to remain many obvious problems with the way in which the claimant put his disability discrimination claims.” (xi) Later in its judgment, delivered on25 November 2022 , the Tribunal held as follows (at paragraph 105): “A theme of this case and the hearing has been the very great difficulties the claimant has had with his original claims in relation to protected disclosures (now all withdrawn) and disability discrimination. Despite the legal advice that the claimant appears to have had along the way, and encouragement given by the tribunal during the hearing, he appears to have given very little thought to how those claims are framed and what might be necessary to prove them (or in the case of the disability discrimination claims, from what material we may have concluded that there was disability discrimination). Even in the limited form eventually pursued by Mr Downey each disability discrimination claim appears to us to have obvious and fundamental flaws.”
“The Respondent will settle your expenses claim of£13.60 , which was conceded at the hearing on20th April 2022 . Costs have already been wasted defending the whistleblowing detriment claims, which the Judge told you would not succeed and were finished, and which have therefore been removed from the List of Issues. You will recall that at the end of the adjourned hearing, the judge pointed out to you the serious problems that you have with the automatic unfair dismissal claim for whistleblowing. He commented that there is no evidence that Joanne Barry’s decision was influenced by any of your protected disclosures and that you should reflect on whether there is a good case to extend this claim into a further five day hearing. He also alerted you to the panel’s concern about your disability discrimination claims being out of time. He pointed out the problems you face linking your treatment with anything arising from your disability or with any of your protected acts for the purposes of your section 15 and victimisation claims. The Judge also pointed out the problems that you have with the ordinary unfair dismissal claim and in particular the problem you face contesting the evidence of Russell Bergman, and the Judge commented that you accepted you were in trouble if Mr Bergman’s evidence is true. All of this gives the Respondent good reason to [believe] that your claims have very little prospect of success and that there is a significant risk of costs being awarded against you if these claims were to fail after such indications ad you have been given by the Judge. Therefore, if you withdraw all your claims in their entirety, the Respondent will agree not to pursue you for costs…”
“2. The respondent applies for a costs award of£7,500 against the claimant. This is its counsel’s fees for the five days of the hearing in November 2022. 3. The application was made on the basis that the claimant continuing with the claim in the November hearing was unreasonable conduct of proceedings under rule 76(1) and that his claims had no reasonable prospects of success. On the latter point, the respondent’s position is that even if the claimant had not realised this before he should have done following indications given by the tribunal during the course of the April hearing, which were followed up by it with a costs warning letter.”
“4. The respondent’s written application sets out what it had in mind, typically taken from our written reasons. These include that “we felt bound to point out to [the claimant] the many difficulties that there appeared to be with his case following the conclusion of his evidence”
“12. We accept [the Respondent’s counsel’s] submission that the claimant’s case had no reasonable prospect of success. We think this should have been clear to the claimant at the very latest by the start of the November hearing, and probably much earlier after the April hearing. It was unreasonable conduct for the claimant to continue with his claim in the face of the points made by the tribunal and the respondent’s costs warning letter. 13. We have considered whether we should make an award of costs, and decided that we should. The claimant should not have continued with his case into the November hearing. For him to do so has put the respondent to unnecessary costs. The amounts claimed as counsel’s fees are not unreasonable in a case of his nature, and given that there seems no doubt on the claimant’s ability to pay we will make the full award sought:£7,500 .”
“A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that – (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success;…”
“61. It is well established that the first question for a Tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of r 76(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that the Tribunal may make a costs order, and shall consider whether to do so. That is the second stage, and it involves the exercise by the Tribunal of a judicial discretion. If it decides in principle to make a costs order, the Tribunal must consider the amount in accordance with r 78. Rule 84 provides that, in deciding both whether to make a costs order, and if so, in what amount, the Tribunal may have regard to the ability to pay.”
“…The question of whether a response had reasonable prospects of success is objective and is the threshold for making a preparation time order under Rule 76(1)(b) ET Rules, even if the respondent was not aware, and should not reasonably have been aware, that the response had no reasonable prospect of success. However, the lack of understanding of the merits of the response would be relevant, along with other matters, to the discretionary question of whether a preparation time order should be made. The questions of whether the respondent knew that the response had no reasonable prospects of success, or should reasonably have known, are relevant to the threshold question for a preparation time order on the basis that defending, or maintaining the defence, to the claim was unreasonable conduct for the purposes of Rule 76(1)(a) ET Rules; after which the discretion to make a preparation time order has to be applied considering all relevant factors. Whichever of the two provisions is applied it is hard to see that the result will be different. However, the matter must be analysed properly.”
“The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages … from my judgment in McPeherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.”
“65. I should say something further about how the Employment Tribunal should approach an application seeking the whole costs of the litigation, on the basis that the claim “had no reasonable prospects of success” from the outset. It should first, at stage 1, consider whether that was, objectively, the position, when the claim was begun. If so, then at stage 2 the Tribunal will usually need to consider whether, at that time, the complainant knew this to be the case, or at least reasonably ought to have known it. When considering these questions, the Tribunal must be careful not to be influenced by the hindsight of taking account of things that were not, and could not have reasonably been, known at the start of the litigation. However, it may have regard to any evidence or information that is available to it when it considers these questions, and which casts light on what was, or could reasonably, have been known, at the start of the litigation. 66. This point needs to be considered in a little more detail. It may be observed that the test of “no reasonable prospect of success” appears in both Rule 76(1)(b), and in the strike-out Rule (Rule 37(1)(a)). But the task carried out by the Tribunal under each of these provisions is different. When considering a strike-out application, the Tribunal must decide whether the complaint or argument in question “has” - at the very same time when it decides that application - no reasonable prospect, based on the information available to the Tribunal at that point. Such applications are often considered at an early stage in the litigation, without the benefit of sight of any evidence; and the Tribunal’s task is to assess the prospects of the claim succeeding if or when it comes to trial in the future. Those prospects are usually considered, therefore, on the basis of the case asserted, taken at its highest, although the Tribunal can also take account, for example, of key documents that may be before it at that point. 67. Where the Tribunal is considering a costs application at the end of, or after, a trial, it has to decide whether the claims “had” no reasonable prospect of success, judged on the basis of the information that was known or reasonably available at the start, and considering how, at that earlier point, the prospects of success in a trial that was yet to take place would have looked. But the Tribunal is making that decision at a later point in time, when it has much more information and evidence available to it, following the trial having in fact taken place. As long as it maintains its focus on the question of how things would have looked at the time when the claim began, it may, and should, take account of any information it has gained, and evidence it has seen, by virtue of having heard the case, that may properly cast light back on that question. But it should not have regard to information or evidence which would not have been available at that earlier time. 68. The foregoing is, in my judgment, in principle the correct approach to take. Read with care, and in light of the particular facts of that case, I do not read the observations of Slade J in Swissport Limited v Exley[2017] ICR 1288 at paragraphs 62 - 68 any differently. The Tribunal may draw on the evidence that it has read and heard at the full hearing, provided that it does so to inform its view of the prospects at the earlier time, based on what was known, or could reasonably have been known, back then. 69. Further, the mere fact that there were factual disputes, which could only be resolved by hearing evidence, and fact finding, arising from the final Hearing, does not necessarily mean that the Tribunal cannot properly conclude that the claim had no reasonable prospects from the outset, nor that it cannot conclude that the complainant could or should have appreciated this from the outset. That still depends on what they knew, or ought to have known, were the true facts, and what view they could reasonably have taken of the prospects of the claims, in light of those facts. See Vaughan (above), in particular at paragraph 14(4).”
“It is possible that a claim or response when served had reasonable prospects of success, but that a development, such as new evidence coming to light, meant that the claim or response ceased to have reasonable prospects of success. It is at that time that the claim “had” no reasonable prospects for the purposes of Rule 76(1)(b) ET Rules.”
“Accordingly, there are three key questions. First, objectively analysed when the response was submitted did it have no reasonable prospects of success; or alternatively at some later stage as more evidence became available was a stage reached at which the response ceased to have reasonable prospects of success? Second, at the stage that the response had no reasonable prospects of success did the respondent know that was the case? Third, if not, should the respondent have known that the response had no reasonable prospect of success?”
“19. The power, as we have already indicated, is one which by the design of the rules is intended to have its principal use at a pre-hearing stage. It is easy to understand why that is. The power, properly used, is an aid, as we see it, to justice. It permits a Tribunal to look at the particular factual allegations made in an ET1; having done so, it may see that the facts could not on any view give rise to an entitlement to the relief claim. In such a case it would not be inappropriate to give notice that the claim might be struck out. Such a process permits the Claimant to say that there are further facts, if that be the case, that might cast a different light upon matters, but otherwise it saves time, it saves the resources of the Tribunal, it saves costs, and it deals with matters in a manner proportionate to the importance to the parties, for the case to be struck out there and then without, on this scenario, going to the unnecessary, expensive, and, for a Respondent, if it be the claim that be struck out, disturbing, process of appearing before a Tribunal. 20. None of that reasoning is likely to apply when an application is made in the middle of a hearing; quite the reverse is likely to occur. Time will be taken not by hearing the evidence, which is what the Tribunal’s principal function is, but in hearing an application that it is unnecessary to hear any more evidence. That application will inevitably be contested. A Tribunal is invited to determine a case not on all the evidence but on part of the evidence. It is invited to have sufficient certainty of the correctness of its own view as to decide that it needs to hear no more, despite universal forensic experience that matters that seem very plain at one stage in a hearing might have a very different complexion at the end. The purpose of a strike-out may nonetheless be appropriate if, for instance, one of the other grounds for striking out is appropriate. Thus if, for instance, one party by its conduct during the course of a hearing makes it very difficult or impossible for the hearing to continue, then the exercise of the power to strike out that party from pursuing or defending the claim is obvious, but the same does not, in our view, apply where what is in issue is not any part of the conduct of the case, the conduct of the parties before the Tribunal, or anything that might in other courts give rise to a contempt application or an abuse application, but is solely related to the force of the evidence and whether, on the evidence, it is possible for the Claimant or, as it may be, the Respondent to succeed. 21. In this case the Claimant was part way through giving her answers in cross-examination. Although ultimately it is for a Tribunal to judge, we see no reason why in a case of this nature the simpler and undoubtedly better course would not have been simply to allow the cross-examination to proceed and the Claimant then to call what witnesses she wished so that the Tribunal had the full picture. Just as it is emphasised that some claims are generally not appropriate to strike out, such as those claims that raise serious issues of discrimination even at an initial stage, so it must be recognised that it would be very exceptional indeed, to the point of the instances of it being vanishingly small, that a claim could ever legitimately be struck out mid-hearing on the grounds of evidential insubstantiability. Not to allow the appeal here might be seen as indicating a view that it is open to a Tribunal to strike out a claim at any stage of the proceedings mid-hearing upon the ground that there is no reasonable prospect of success. Only to posit that possibility is to envisage a scenario in which litigants may forever be looking for an opportunity to indicate that their case is so exceptional that the power should in this case be used. It runs a real risk that Tribunals will have their attention diverted from deciding the facts as they are to having to determine the facts as they might be. It runs counter to the overriding objective that it is the purpose of rule 18(7) to serve, because it is likely to cost time, cost money, cost resources and cause inconvenience to the parties that simply getting on and hearing the case avoids, and, perhaps most importantly, it risks the sense that litigants might have that they have been wrongly shut out from telling their story in a public forum because the court at some stage mid-hearing refuses to hear any more. It is no part of justice, blind as it must be, also to be deaf to a selective part of the evidence.”
“It is well established, and has been said many times, that one ought not to take too technical a view of the way an employment tribunal expresses itself, that a generous interpretation ought to be given to its reasoning and that it ought not to be subjected to an unduly critical analysis.”
“We do not consider that it was irrelevant for the tribunal to take into account the absence of an application on behalf of AQ for a pre-hearing review. If the claim had truly been misconceived or vexatious there could have been an application to strike out (or a deposit order). The matter was not in any sense decisive of the application for costs; but it was not irrelevant.”
“(1) The duty to give reasons is a duty to give sufficient reasons so that the parties can understand why they had won or lost and so that the Appellate Tribunal/Court can understand why the Judge had reached the decision which s/he had reached; (2) The scope of the obligation to give reasons depends on the nature of the case; (3) There is no duty on a Judge, in giving his or her reasons, to deal with every argument presented by counsel in support of his case; (4) The Judge must identify and record those matters which were critical to his decision. It is no possible to provide a template for this process. It need not involve a lengthy judgment; (5) The judgment must have a coherent structure. The judgment must explain how the Judge got from his or her findings of fact to his or her conclusions; (6) When giving reasons a Judge will often need to refer to a piece of evidence or to a submission which s/he has accepted or rejected. Provided that the reference is clear, it may be unnecessary to detail, or even summarise, the evidence or submission in question; and (7) It is not acceptable to use a fine-tooth comb to comb through a set of reasons for hints of error or fragments of mistake, and try to assemble them into a case for oversetting the decision. Nor is it appropriate to use a similar process to try to save a patently deficient decision.”