J Samra v The London Borough of Islington [2025] EAT 162

[2025] EAT 162

Case No EA-2023-000332-DXA

EMPLOYMENT APPEAL TRIBUNAL

Venue Rolls Building, Fetter Lane, London, EC4A 1NL

Date 19 August 2025

Before

HIS HONOUR JUDGE BARKLEM

Between

MR J SAMRAAppellant

- and –

Between

THE LONDON BOROUGH OF ISLINGTONRespondent

Mr Joseph England (instructed through Direct Access) for Appellant

Mr Leo Davidson (instructed by London Borough of Islington Law and Governance) for Respondent

Hearing Hearing date: 19 August 2025

JUDGMENT

[1]An employment tribunal made an order for costs against the unsuccessful claimant. However, in its ruling it failed to refer to established authority. Had it done so, the ET would have appreciated that it was not enough to hold, as it did, that there was objectively no reasonable prospect of success for the claims. It had also to consider whether the claimant knew or appreciated that and, if not, whether he ought reasonably to have known or appreciated that. Having found that the claimant had convinced himself of the truth of the race discrimination allegations and continued to believe them, the second question, if asked, must have been answered in the affirmative. That led to a third question which simply was not addressed. That was a clear error of law.

[2]The case was remitted to a fresh tribunal because the Employment Judge concerned had since retired. HIS HONOUR JUDGE BARKLEM:

[3]In this judgment I shall refer to the parties as they were before the tribunal. This is an appeal against the decision of an Employment Tribunal sitting at Watford on 9 March 2023 chaired by EJ Lewis sitting with Mrs Hancock and Mr Miller which made an order for costs against the claimant in the sum of £15,000. This followed an earlier hearing which had taken place in January and February 2022 in which written reasons were sent on 12 April 2022. The claimant’s claims were all dismissed.

[4]At the March 2023 hearing (which I will refer to as “the hearing”) the respondent had made what the tribunal regarded as three principle contentions which supported its application for costs. The first was that, in broad terms, the claimant had objectively no reasonable prospect of success with a particular allegation of forgery being highlighted. The second related to settlement attempts as the tribunal held at paragraph 25 of its reasons that it did not regard the claimant’s failure to engage with settlement offers as constituting unreasonable conduct. I will therefore say no more about that, nor indeed the third head relating to case preparation which the tribunal also rejected as constituting unreasonable conduct. I shall, therefore, focus on what was described as questions of merits in the written reasons from paragraph 15 onwards.

[5]The tribunal began by summarising its earlier findings and, in particular, five events which took place in or around April 2019 when the claimant was close to completing four decades of unblemished service with the respondent. Four of these related to incidents with service users named X and Z in the reasons and the fifth to a promotion interview. The tribunal held at paragraph 17 that these five events had in common that the claimant was entirely responsible for all of them. It went on to say at paragraph 18 and following:18. When these events triggered adverse consequences, notably a disciplinary enquiry and hearing, and of course a failure to promote, the reality was that the claimant had only himself to blame. It was obvious at the hearing in January 2022 that the claimant struggled to accept that reality, and when he addressed us today, it seemed to usthat he still struggles to do so.

19. Viewed objectively, the claimant may well have had points to raise about process. The actions of any manager in any context can always be faulted. He had however no objective basis whatsoever on which to attribute any of these matters to race, which is what he began to do in 2019. We agree with Mr Davidson’s comment that having done that, he then “trawled” past events, found events which now seemed adverse, and attributed them to race.

20. Our finding is that the claimant had absolutely no objective or evidential basis on which to do so. We accept Mr Davidson’s comment that on the contrary, the evidence showed that for each adverse event there were material reasons unrelated to race, of which the most significant was the claimant’s own actions. We paraphrase our earlier judgment slightly with the comment that in relation to each of the four events, he had choice: he could have decided not to write to X; he could have done as instructed, and apologised to X; he could have been more prudent in relation to A; he could have processed Z’s report.

21. Mr Davidson invited the tribunal to find that the claimant had been “cynical” in alleging race discrimination. If by that, Mr Davidson implied that the claimant made allegations of race discrimination, knowing them to be untrue, we reject the allegation. It seems to us that the claimant has convinced himself of the truth of the race discrimination allegations, and believes them. We nevertheless agree with Mr Davidson that it was unreasonable to pursue them.

22. The “forgery” allegation is perhaps the most extreme instance of all of these factors. We do not repeat what we have said in our previous judgment about the claimant’s letter to X and the complaint letter from X. We accept that the claimant has convinced himself that a forgery took place, despite its inherent implausibility, the absence of supporting evidence, and the circumstantial evidence against. We also accept also that the claimant showed no insight whatsoever into the gravity of the language which he used about colleagues, notably Mr Muir; or that he appeared at times fixated with Mr Muir as an individual; or that his conduct of the case appeared highly personalised.

[6]The rejection of the respondent’s contention that the claimant made allegations knowing them to be untrue is, in my judgment, an important finding, as too that he showed no insight into the language he used. At paragraph 27 the tribunal held, drawing its earlier findings together, that the first step of the test set out at rule 76 of the Employment Tribunal rules, as they then were, had been met. The claimant had brought and pursued the proceedings unreasonably by bringing claims of race discrimination of which there was no evidence whatsoever, the claims were misconceived and had no reasonable prospect of success.

[7]The tribunal then asked itself whether the costs award would be in the interests of justice and found that it would be. It then considered the claimant’s means. The claimant remained employed by the respondent, was plainly a house owner or joint owner and had accrued a full pension which could involve lump sums in the future. He remained, as I say, employed. The tribunal awarded the sum of £15,000 which is acknowledged represented only a modest proportion of the respondent’s costs which were in the region of £130,000.

[8]The original grounds of appeal were rejected on the sift. However, the claimant sought a rule 3(10) hearing at which he was assisted by Mr England who appeared under the ELAAS scheme. Mr England has continued to represent the claimant on a pro bono basis. The respondent is represented, as it was below, by Mr Davidson. I am grateful to each of them and for their skeleton arguments and oral submissions at the hearing.

[9]As often happens at rule 3(10) hearings where, for the first time, a legally qualified person looks at the papers on behalf of the hitherto unrepresented litigant, original grounds of appeal are abandoned and new ones lodged. That is what happened in this case. The reformulated grounds which HHJ Taylor permitted to proceed to a full hearing were as follows:(i) The tribunal erred in conflating the tests under rule 76(1)(a) and rule 76(1)(b).

(ii) In determining that the claim had no reasonable prospects of success, the Employment Tribunal erred in considering when, and if at all, the claimant acting as a litigant in person should have known that the claim had no reasonable prospect of success.

(iii) When considering whether to award costs, the Employment Tribunal erred in applying a test of what was in the interests of justice which was the incorrect test and more limited than the test of considering all the circumstances; and

(iv) The tribunal erred in insufficiently analysing and explaining the relevance of the claimant’s means when assessing whether to award costs and, if so, in what amount.

[10]Counsel for both parties have served well fleshed-out skeleton arguments. That is not a criticism. However, I shall not add to this judgment by dealing with the history of the costs regime in the Employment Tribunal, the need for the EAT not to be too critical or pernickety when examining an ET’s decision and the possible methods of disposal of an appeal. I shall simply focus on the parts of the respective skeleton arguments which deal with the grounds of appeal, suitably reminded of all other matters dealt with in the skeleton arguments to which I record that I have paid careful heed. I am conscious that I will not in this deferred extempore judgment do full service to the detailed submissions made by both counsel but I have had regard to everything that has been said.

[11]Grounds 1 to 3 overlap and, as will become apparent, I have found ground 2 the most significant. Mr England begins by pointing out that the judgment is brief and lacks any consideration of case law. He cites a warning by Simler J in Oni v UnisonUKEAT 0534/12 at paragraph 16 when she said:

“First in Vaughan v London Borough of Lewisham… Underhill J (as he then was) observed that it is tempting for tribunals to treat costs orders as merely ancillary and as not requiring the same detailed reasons as more substantive issues. The difficulty with that approach is that costs orders can be substantial and can create a significant liability for a paying party. Accordingly they warrant appropriately detailed and reasoned consideration and conclusion. Secondly, costs are compensatory and not punitive. Thirdly, the fact that a party is unrepresented is a relevant consideration. The threshold tests may be the same whether a party is represented or not, but the application of those tests should take account of whether a litigant has been professionally represented or not. As HHJ Richardson noted in AQ Ltd v Holden [2012] IRLR 648 (followed with approval in Vaughan) a tribunal cannot and should not judge a litigant in person by the same standards as a professional representative. Lay people may lack the objectivity of law and practice brought to bear by a professional advisor, and this is a relevant factor that should be considered by the tribunal even if the threshold of unreasonable conduct is crossed when deciding, in light of all the circumstances, whether to make a costs order and, if so, how much.”

[12]For convenience, I should also add at this stage that at paragraph 18 Simler J, as she then was, said:

“So far as means are concerned, a paying party’s means are not restricted to income, but may include capital; for example, the individual’s share of a matrimonial home. But importantly the fact that a party’s ability to pay is limited does not oblige a tribunal to limit the amount of costs to a sum that can be paid presently or within a specified timescale. If there is a realistic prospect that a claimant might at some point in the future have the ability to pay a costs order, it would be legitimate to make a costs order in that amount so that the respondent could make some recovery when and if that occurred: see Vaughan v Lewisham Borough Council.”

[13]So rule 76 provides as follows:

“(1) 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.” (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.”

[14]The thrust of Mr England’s complaint so far as ground 1 is concerned is that the ET conflated the two separate parts of rule 76. It is clear from the reasons that they found that there was objectively no reasonable prospect of the claim being successful. However, it is equally clear from the reasons, as well as the reasons in the original judgment which I have read (see by way of example paragraphs 51 and paragraph 58) that the claimant had convinced himself of the truth of the allegations and believed them. The ET rejected the respondent’s contention that he had cynically brought the claims not knowing them to be true (see reasons at paragraph 21 – sorry, see paragraph 21 of the reasons set out above).Paragraph 27 of the reasons, which again I have summarised above, falls squarely within section 76(1)(a), bringing and pursuing the claims unreasonably when there was no evidence.

[15]Mr England submits that the only unreasonable conduct relied upon by the tribunal in relation to subsection (a) is the question of objective merits under subsection (b). He argues that conduct, which is what subsection (a) is about, cannot automatically be equated with pursuing a claim with no reasonable prospects of success, and the tribunal made no attempt to identify any specific unreasonable conduct beyond pursuing a claim with no objective prospects of success. He argued that that fell foul of a key requirement set down by the Court of Appeal in Yerrakalva v Barnsley Metropolitan Borough Council

[2012] ICR 420

when Mummery LJ said:

“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.”

He goes on to cite a number of authorities which I need not quote in full which deal with the particular circumstances of litigants in person. They add little to the dicta of Simler J that I have already dealt with.

[16]In Opalkova v Acquire Care Ltd, HHJ Tayler said this at paragraph 22:

“Determining that a response did not have a reasonable prospect of success or that a respondent acted unreasonably in defending the claim and/or in maintaining the defence is a threshold that results in the tribunal having a discretion to make a cost or preparation time order. As HHJ Auerbach noted in Radia v Jefferies [2020] IRLR 431: ‘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 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 then consider the amount in accordance with rule 78.’ HHJ Auerbach considered the overlap between a claim or response having no reasonable prospect of success and unreasonable conduct at [64] where he said: ‘This means that, in practice, where costs are sought both through the rule 76(1)(a) and (b) route, and the conduct said to be unreasonable under (a) is the bringing, or continuation, of claims which had no reasonable prospect of success, the key issues for overall consideration by the tribunal will, in either case, likely be the same (though there may be other considerations, of course, in particular at the second stage). Did the complaints, in fact, have no reasonable prospect of success? If so, did the complainant in fact know or appreciate that? If not, ought they, reasonably, to have known or appreciated that?’ 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 prospect of success did the respondent know that that was the case? Third, if not, should the respondent have known that the response had no reasonable prospect of success?”

[17]Mr Davidson submits that the ET had permissibly held that both limbs of section 76 had been met, each being supported by what he describes as the detailed reasoning which preceded them. He argues that paragraph 27 properly read contains findings in relation to each limb separately. There was no conflation. Read with the original judgment there is ample detail to explain the ET’s conclusions.

[18]I enquired in the course of argument whether either counsel was aware of any authority in which costs had been awarded under limb (b) alone. After some research, neither was able to point to any. All of the cases cited to me seem to have involved a finding that there was no reasonable prospect of success coupled with unreasonable conduct in proceeding when there was none such. To that extent, therefore, a degree of conflation is inevitable. There are, of course, other cases in which costs are awarded that do not bear on the merits of the underlying claim but, rather, on a failure, for example, to comply with tribunal orders, using abusive language in correspondence and the like.

[19]Mr England also submitted that the tribunal was wrong to make mention of the use of tribunal resources as part of its justification for making a costs award on the basis that this was plainly punitive rather than compensatory. Mr Davidson responded that there is always an element of deterrent or sanction when a compensatory order is made. In the light of the conclusion I have come to on ground 2, I do not propose to deal with these matters in any more detail.

[20]It seems to me that ground 2 is of the greatest importance in this appeal. In argument, Mr Davidson conceded that if a claimant acted sincerely as to his or her prospects of success, then he or she would not have been acting unreasonably and it would be unfair to impose a costs order. The problem with this tribunal’s judgment is that it chose not to set out the legal principles which it had to follow by reference to the case law. It cannot be said, therefore, that it must have been fully aware of them. Costs are not often awarded in ET proceedings and, as Mr England pointed out, it should not be assumed that a tribunal will be as aware of the finer points than in issues with which it will deal on a day to day basis such as amendments and strike out applications.

[21]Had the ET set out the three-part test mentioned in Radia quoted above, the ET would have appreciated that it was not enough to hold, as it did, that there was objectively no reasonable prospect of success for the claims. It had also to consider whether the claimant knew or appreciated that and, if not, whether he ought reasonably to have known or appreciated that. Having found that the claimant had convinced himself of the truth of the race discrimination allegations and continued to believe them, the second question, if asked, must have been answered in the affirmative. That leads to the third question which simply was not addressed. That was a clear error of law and, in my judgment, the appeal must be allowed on that ground alone. I will therefore deal with the other issues which arose very briefly.

[22]It is accepted that the correct test which the tribunal ought to have adopted was “in all the circumstances of the case” rather than “in the interests of justice”. Mr Davidson said that that formula is, in reality, equivalent to a verbal “tic” adopted by many judges and there is nothing in the point. In the light of my conclusion that the present decision cannot stand, I would simply add that if the matter falls to be determined again the correct form of words should be stated and applied.

[23]As to the quantum of the claim, Mr England submits that it was wrong to have regard to the totality of the costs in deciding on a sum which was expressed to be a modest proportion of them. There was no analysis of the claimant’s means in monetary terms, no consideration of what equity there was in the property that was mentioned, nor his likely pension payment or of the lump sums mentioned.

[24]Again, if and when this matter is reconsidered it should be borne in mind that a proper analysis of the sums involved would greatly assist an appellate tribunal in considering whether the award made was proportionate. On the other hand, having regard to paragraph 18 of the judgment of Simler J in Oni, which I set out at the beginning of this judgment, had this ground stood alone, I would have had very real reservations in accepting it despite the lack of specific figures being set out. However, in the light of my findings in relation to ground 2, I allow this ground also.

[25]It was said at the start of this appeal that in the event that I found as I have, it was hoped by the parties that I would be able to substitute my own view for that of the Employment Tribunal. In the event, there was insufficient time for me to deliver this judgment on the day of the hearing and I am now doing so remotely. I invited submissions from the parties as to disposal but Mr England said that he would prefer to deal with that in writing after considering the judgment. I agreed that I would consider submissions in writing to be delivered by 4pm on Wednesday of next week. As next week is the last of my four week stint in the EAT and I will not be back until December, there is no question now of my dealing with the matter myself.

[26]In making the application in 2023, the respondent pointed out that the costs borne by the respondent came from a specific budget within the local authority and that every pound spent on legal proceedings is a pound not available for the underlying purpose of that budget. Whilst appreciating the strength of the argument, I would be very surprised if the costs which have been incurred from the date of making the application to date were not more than the costs awarded.

[27]Following the handing down of this judgment I sought submissions as to disposal, and ruled as follows: If pursued by the Respondent, the application for costs be remitted to a Tribunal the composition of which is a matter for the Regional Employment Judge. There is no bar to that Tribunal comprising, if available, either or both of the non-legal members who sat below.