Mr M Iqbal v Proactive Personnel Ltd: 1302574/2018
JUDGMENT
BY CONSENT The respondent is ordered to pay the claimant £2000 in full and final settlement of his claim.REASONS
[1]The claimant’s claim (presented on 23 May 2018) was for unpaid wages and holiday pay. There was a final hearing on 15 and 17 October 2019 .That hearing concluded when the parties agreed the terms of a judgment ( which was identified as having been made by consent under Rule 64 of the Employment Tribunal Rules of Procedure 2013 (‘the Rules’) ) whereby the respondent was ordered to pay the claimant the sum of £2000 in full and final settlement of his claim.[2]The purpose of today’s hearing was to determine the claimant’s application for a preparation time order/costs dated 13 November 2019 on the ground that the respondent had acted unreasonably (‘the costs application’) . The claimant’s schedule of costs sought a total of £ 12542.66 . On 21 January 2021 I had ordered the claimant to prepare the costs hearing bundle and to send it to the tribunal and the respondent 14 days before the costs hearing. Ms Javed sent a final form of the bundle (319 pages) to the respondent and the tribunal shortly before midnight on 3 January 2022.[3]On 4 January 2022 Ms Jones made an application that the claimant’s costs application be struck out in which she complained about the late receipt of the bundle from Ms Javed and her failure to have attempted to agree its contents and referred to an attached email she had sent to Ms Javed which enclosed documents the respondent wanted to have included in the bundle for use at the costs hearing but which she said Ms Javed ‘will dispute’ as she claimed they were ‘without prejudice’. Ms Jones asked that the documents be put before me and said the respondent considered the documents extremely relevant to the issue of costs because it had made several offers to settle and the time spent on the case could have been significantly reduced. Her email to Ms Javed ( with attached documents) in question was not attached but Ms Jones noticed her omission and sent it to the tribunal at 9.09 am this morning.[4]In an email timed at 9.56 am this morning Ms Javed wrote to the tribunal saying that ‘in a gross act of defiance and abuse of power’ the respondent had submitted ‘without prejudice’ correspondence to the court and applied for the respondent’s defence of the costs application to be ‘thrown out’ and the claimant be awarded costs.[5]At the commencement of today’s hearing Ms Jones confirmed that she was not pursuing the respondent’s application dated 4 January 2022. Ms Javed asked me if I would determine an application that she be permitted to record the hearing. I told her that such an application (and a reconsideration application) had already been decided by Employment Judge Harding (most recently on 5 January 2022) and I could not consider it again in the absence of a material change of circumstances (or a misstatement of fact or law) Serco Ltd v Wells 2016 ICR 768.[6]Ms Javed told me Ms Jones had enclosed ‘without prejudice’ correspondence in her email to the tribunal today which she considered to be an abuse of the court because I had made it clear during the final hearing on 16 to 19 October 2019 that such correspondence could not be relied upon. I was working remotely today and did not appear to have been sent the attachment to Ms Jones’ email today so I adjourned the hearing to make further enquiries.[7]When the hearing recommenced there was further discussion to ascertain if Ms Javed wanted to pursue her strike out application. Ms Javed said she thought it would prejudice me if I had sight of the ‘without prejudice’ correspondence. I said that another judge might have to decide if I should look at it but first I needed to know if the respondent did want to rely on the correspondence Ms Jones had attached to her email. Ms Jones said she did because it showed the respondent’s attempts to settle the claim at an early stage before substantial costs were incurred by the claimant. I then adjourned to give Ms Javed the opportunity to decide whether she wanted to proceed with her strike out application.[8]Before asking Ms Javed to confirm what she wanted to do, I said that it seemed to me that the respondent was seeking to rely on the correspondence in question in order to show that ,contrary to the claimant’s allegation that it had acted unreasonably, it had acted reasonably in its conduct of the proceedings. I drew the parties’ attention to the case of Kapel v Safeway Stores plc 2003 IRLR 753 in which the respondent had applied for costs and submitted there had been unreasonable conduct by the claimant. The Employment Appeal Tribunal said that a ‘without prejudice save as to costs’ letter was a factor a tribunal could take into account in deciding if there had been unreasonable conduct. Ms Javed asked if all the respondent’s correspondence had been ‘without prejudice’ or with ACAS. I said I did not know because I had not read the correspondence attached to Ms Jones’ email. Ms Javed then confirmed she wanted to proceed with her application to strike out the respondent’s defence of the claimant’s costs application and I heard submissions from both parties. The Strike out Application[9]Ms Javed said that the respondent had submitted ‘without prejudice’ correspondence to the tribunal at a preliminary hearing and also at the final hearing. On both occasions she had opposed the inclusion of the documents. It had been explained to the respondent at the final hearing that regardless of whether the documents in question had been labelled ‘without prejudice’ if they contained genuine attempts to negotiate a settlement they could not be admitted as evidence before the tribunal. There was correspondence where she had brought this up with Ms Jones e.g. an email on 19 August 2019 prior to a preliminary hearing in August, though she confirmed this email was not a document which was included in the bundle she had prepared for today’s hearing. She said no communications with ACAS should be included .At the final hearing the parties had had discussions and the respondent had sought their agreement to put such documents before the tribunal and she had refused. The respondent could not rely on correspondence which was not marked ‘without prejudice save as to costs’. Ms Jones was the respondent’s legal adviser so it was not plausible she did not know the rules. Her repeated actions were abuse. Her email of 4 January 2022 was baseless and abuse. There was no doubt that she was aware she was not permitted to do it but she did it anyway.[10]Ms Jones said she was not sure what documents Ms Javed had been referring to when she had talked about the final hearing .Ms Jones said she had discussed the offers to settle made via ACAS with her manager at the time and she had been instructed she could include them because they were not ‘without prejudice.’ At the final hearing the respondent had agreed to their removal because the hearing was concerned with liability not costs. Tribunals were a new experience and the information she had been given was passed on to her by her manager. If documents ought not to have been submitted this was a genuine error and was not done with malice. She had wanted to make the point the respondent had been reasonable, not unreasonable and that was why they had been submitted. Ms Javed had included in the bundle ( at pages 152 and 153) an extract from a letter (not dated in the bundle) which the respondent had written to Ms Javed and redacted a large section within which the respondent had reserved the right to refer to the letter.The Law
[11]Under Rule 76 (1) (a) a tribunal may make a costs order or preparation time order ,and shall consider whether to do so ,where it considers that 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 in the way the proceedings (or part) have been conducted.[12]Under Rule 29 of the Rules a tribunal may at any stage of the proceedings, on its own initiative or on application ,make a case management order. A tribunal also has the power to strike out all or part of a claim or a response under Rule 37.[13]Under Rule 2 of the Rules the overriding objective of the Rules is to enable Employment Tribunals to deal with cases fairly and justly . Tribunal Dealing with a case fairly and justly includes ,so far as is practicable – a) Ensuring that the parties are on an equal footing; b) Dealing with cases in ways which are proportionate to the complexity and importance of the issues; c) Avoiding unnecessary formality and seeking flexibility in the proceedings ; d) Avoiding delay ,so far as is compatible with proper consideration of the issues; and e) Saving expense.[14]A tribunal shall seek to give effect to the overriding objective in interpreting ,or exercising any powers given to it by, these Rules. The parties and their representatives shall assist the tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.[15]Employment Tribunals (England and Wales)-Presidential Guidance -General Case Management (2018) (to which tribunals must have regard although they are not bound by it ) contains Guidance Note 2 :Disclosure of Documents and Preparing Hearing Bundle. Paragraph 1 of Guidance Note 2 says that ‘The Employment Tribunal often requires the parties to co-operate to prepare a set of documents for the hearing. Even if no formal order is made ,the Tribunal prefers that documentary evidence is presented in one easily accessible set of documents (often known as ‘the hearing bundle’) with everyone involved at the hearing having an identical copy.’ Paragraph 3 says that ‘Agreeing a set of documents means that all parties agree which documents are relevant and the tribunal will need to see.’ Paragraph 9 says that ‘ A party is usually not required to disclose a copy of a privileged document: for example ,something created in connection with the preparation of a party’s Tribunal case (such as notes of interviews with witnesses ) ;correspondence between a party and their lawyers ;correspondence between parties marked ’without prejudice’; or part of discussions initiated on a without prejudice basis with a view to settlement of the matters in issue; or records of exchanges with ACAS.’ Paragraph 13 says ‘The parties then co-operate to agree the documents to go in the hearing bundle .The hearing bundle should contain only the documents that are to be mentioned in witness statements or to be the subject of cross-examination at the hearing, and which are relevant to the issues in the proceedings. If there is a dispute about what documents to include ,the disputed documents should be put in a separate section or folder ,and this should be referred to the Tribunal at the start of the hearing.’[16]Under section 18(7) Employment Tribunals Act 1996 anything communicated to a conciliation officer in connection with the performance of his functions under any of sections 18A to 18C shall not be admissible in evidence in any proceedings before an employment tribunal except with the consent of the person who communicated it to that officer.[17]I first decided that, having considered section 18 (7) Employment Tribunals Act 1996, if the respondent had sent to the tribunal its communications to a conciliation officer as attachments to its email of 4 January 2022 it was implicitly giving consent for those communications to be admitted as evidence in the determination of the claimant’s costs application. It seemed to me therefore that it could not be said in relation to those communications that there were not admissible (although this was not so in the case of the claimant’s communications to a conciliation officer since the claimant had not given consent).[18]In considering whether a party has acted unreasonably in its conduct of the proceedings a tribunal must look at the whole picture of what happened in the case and ask whether there has been unreasonable conduct and in doing so identify the conduct what was unreasonable about it and what effects it had. Even if the grounds under rule 76 (1) (a) are established the tribunal still has a discretion as to whether to make an order.[19]Ms Jones had made it clear in the email of 4 January 2022 that she intended to make representations in response to the costs application. It seemed to me therefore that the respondent’s communications with ACAS were also relevant to the issues I would have to decide and should therefore be included in the bundle of documents for use at the costs hearing.[20]I refused the claimant’s strike out application in this regard. There had been no abuse of power by the respondent in its submission of ACAS correspondence to the tribunal. I accepted Ms Jones’ submission that she had done so in error. Neither party was aware of section 18 (7) Employment Tribunals Act 1996 ,the effect of which was to permit the admission of communications with a conciliation officer if the person making the communication consented . The respondent was not in any event seeking to oppose the costs application solely on the basis that it had not acted unreasonably ;it had also said in its email to the tribunal dated 14 November 2019 in response to the costs application that it was unnecessary because the claim had been settled ‘in full and final settlement’. In my judgment it would be wholly disproportionate to prevent the respondent from defending the costs application because it had submitted ACAS correspondence to the tribunal.[21]The parties then sought clarity on what documents ought be included in the bundle for the costs application hearing . Ms Jones said that there was an email to the claimant in which correspondence with ACAS was referred to and the respondent would also want to rely on a letter to the claimant which had not been labelled ‘without prejudice’ because the respondent had always intended it to be an open letter. This was in addition to the redacted extract of the respondent’s letter to the claimant which was in the bundle at pages 152 and 153 and there were other emails to the claimant which contained offers to settle and which were not labelled ‘without prejudice’ .[22]I asked Ms Javed to confirm that she had made her earlier submissions on the basis that the respondent had submitted to the tribunal not only communications with ACAS but also ‘without prejudice’ correspondence. If so , I said I had not considered in my deliberations the inclusion of such correspondence. Ms Javed said that her submissions had indeed been in relation to both types of documents and the respondent had agreed the documents were ‘without prejudice’ .I reminded her that Ms Jones had evidently not accepted this ;she had described some of the documents she had wanted to be included in the bundle as open correspondence .[23]I decided that having determined the claimant’s strike out application in relation solely to the respondent’s submission of ACAS correspondence I should now consider whether the respondent’s defence of the costs application should be struck out because it had submitted without prejudice correspondence to the tribunal in its email of 4 January 2022.[24]I decided that it should not. It seemed to me there was a difference between the submission to the tribunal of ‘without prejudice’ correspondence between the parties prior to the determination of liability and the submission to the tribunal of such correspondence in relation to costs applications. In the case of the former, it cannot be referred to during the final hearing, but after judgment has been given, a ‘without prejudice’ offer to settle by a respondent may be taken into account in determining a costs application if that application is brought on the ground that the respondent has been unreasonable in its conduct of the proceedings and the respondent wants to show that contrary to that assertion it acted reasonably in its conduct of the proceedings .The respondent was effectively seeking to waive any privilege in those documents as far as its offers to settle were concerned .In those circumstances in my judgment it would be wholly disproportionate to prevent the respondent from defending the costs application because it had submitted ‘without prejudice ‘ correspondence to the tribunal. It seemed to me that correspondence ( subject to a careful analysis and construction of their contents) would also be relevant to the issues I would have to decide and should therefore be included in the bundle of documents for use at the costs hearing.[25]In any event the tribunal’s powers to strike out are confined to the striking out of a claim or a response.[26]I explained to the parties that I had avoided reading the correspondence in question so I had not formed a view as to whether it was correctly labelled ‘without prejudice’ or was in fact open correspondence or was correspondence which was ‘without prejudice save as to costs ‘.[27]After being given the opportunity during an adjournment to decide how she wanted to proceed Ms Javed applied for a postponement because she intended to appeal to the Employment Appeal Tribunal. Ms Jones opposed that application because of the very considerable delay in determining the application which had already elapsed.[28]I decided to postpone and relist the costs hearing because some further case management orders were needed in relation to the agreement and preparation of a final bundle of documents and the provision of further information from the claimant about the dates of the respondent’s alleged unreasonable actions and the page numbers in any agreed bundle which referred to them and the time remaining today was not sufficient for those orders to be complied with by the parties and to hear their submissions on and decide the claimant’s costs application .I have made a separate case management order about those costs hearing preparations.[29]I encouraged and I continue to encourage the use by the parties of the services of ACAS or other mediation or other means of resolving the costs dispute by agreement (Rule 3 of Employment Tribunal Rules of Procedure 2013).[30]Parties can appeal to the Employment Appeal Tribunal if they think a legal mistake was made in an Employment Tribunal decision. There is more information here: https://www.gov.uk/appeal-employment-appeal-tribunal[31]The above is a very serious allegation but there is no evidence before me from which I could conclude that the respondent acted in the way alleged and in any event I am concerned with the respondent’s conduct in these proceedings. In these proceedings there was no claim under the Regulations.[32]The claimant’s eighth allegation of unreasonable conduct was of a ‘failure to comply with Court Orders more than once: Reply was served late, Directions were not complied with (including disclosure - timesheets and holiday forms missing and some documents disclosed late, March Hearing Bundle was not held together using tags or contained in ring binder as Ordered but using sharp metal stationary that Judge Dean advised must not be used, Chronology was limited to end of June 2018 and insufficient time given to consider this (less a working day).’ Ms Jones submitted that so far as she was concerned the response was presented in time. There were 11 emails to the claimant containing disclosure one of which was too large and exceeded the relevant size restriction. It was not until the following day that the respondent became aware it had not been sent and the respondent notified the claimant why it had failed and sent the documents immediately. There was no malice and a hard copy was posted to the claimant. The hearing bundle was held together by a metal clip .She had not been aware this was not permitted and had apologised .There was no delay and this was at the respondent’s expense in any event so she was not sure why this has been mentioned. The claimant had not explained the significance of the chronology so she was unable to comment further. She also referred me to the bundle for this hearing which the clamant was meant to try and agree with the respondent but this had not been done. The respondent had asked for some documents to be included but this was not done because the claimant had believed they should not be included.[33]As far as the allegation that the response was served late is concerned the tribunal file shows that Ms Jones wrote a letter to the tribunal ( copied to the claimant) in which she explained why she thought the response ( which had been rejected because it was late ) had not been received by the tribunal until 2 July 2018 when it should have been received by 27 June 2018. Employment Judge Lloyd granted an extension of the time limit to enable the response to be accepted. He would not have done so if he thought the respondent had acted unreasonably in this regard. The parties were informed of this by a letter from the tribunal on 26 July 2018.The claimant has not identified what directions were not complied with or when this happened. Ms Jones has provided an explanation in relation to late disclosure and for the metal clip on the bundle .The claimant has not explained the significance of the chronology ending in June 2018. The claim related only to the period up to 16 March 2018 ( see the Findlay Order paragraph 3 ) It may be that the respondent’s conduct of the proceedings could have been improved upon but the test is that it was unreasonable and I am not satisfied that the matters set out by the claimant in the eighth allegation amount to unreasonable conduct.[34]The claimant’s ninth allegation of unreasonable conduct was that ‘The Respondent often provided documents with little time to consider them (less than one working day) and being required to agree these or a Bundle e.g. chronology, agreed statement of facts, Bundle’.Ms Jones said that no specifics of the occasions were provided by the claimant to enable her to respond but she said that the two main bundles for the hearing had been prepared by the respondent and were extremely large ( 1076 and 444 pages respectively) It was time consuming and difficult to agree the bundle with the claimant. The respondent had not submitted anything late and ,if it had ,this was not done maliciously. The respondent would not deliberately delay matters because that would put more pressure on the respondent. I am not satisfied in the absence of specific occasions that the matters set out by the claimant in the ninth allegation amount to unreasonable conduct nor am I able to reach any conclusions about what effects this may have had.[35]The claimant’s tenth allegation of unreasonable conduct was that ‘on multiple occasions the Respondent submitted without prejudice documents to the Court although the Claimant objected to this and referred to without prejudice negotiations in correspondence to the Court. Judge Woffenden removed this document from the Bundle and explained this was not permitted although the Respondent's legal advisor would be aware of this’. Ms Jones submitted that again the claimant had not made it clear in the application exactly what documents were being referred to but she assumed it was her letter of 5 July 2019 because she had agreed and it had been removed it from the bundle for the October hearing. Employment Judge Routley ( who on 17 June 2022 made case management orders about certain documents to be included in the bundle for the costs hearing) had confirmed the respondent was entitled to rely on it because the right to refer it to the tribunal had been reserved. The claimant had sought to include it in a redacted form .If he had truly believed it was without prejudice it would have been excluded. She submitted that it appeared the claimant’s concern was that if it was seen in its entirety it would show the respondent was not being obstructive evasive or vexatious as alleged .[36]The claimant has not identified the multiple occasions to which reference was made. However ,in relation to the final hearing, I had advised the parties that without prejudice correspondence should not be in the bundle for the final hearing and it was removed. I am not satisfied that Ms Jones’ inclusion of such documents amounted to unreasonable conduct; even if she ought to have been aware as a legal assistant that such correspondence should not be included, there is no evidence before me from which I could conclude she did so deliberately.[37]The claimant’s eleventh allegation of unreasonable conduct was that in ‘January 2019 Hearing had to be adjourned due to Respondent not providing relevant documents in order for Claimant to calculate losses.’ Ms Jones submitted that the respondent had provided all payslips in April 2018. There had been disclosure and an Subject Access Request was also made and the information was sent twice ( a memory stick on 13 December 2018 and a hard copy on 18 December 2018).Disclosure was also made but after the date of the January hearing on 21 January 2019 and as required by the order of the tribunal. The hearing was postponed at the claimant’s request dated 15 November 2019 on the grounds that the respondent had not provided information (despite having said mid July 2019 it would be provided within a month) required to enable him to prepare for the meeting. Ms Jones did not object to the request and apologised for the delay which she attributed to having not received the requisite information from other departments and proposed the information be provided by 14 December 2018.She also referred to the fact that the claimant had estimated his losses to be about £1000 plus damages for holidays and wages lost or paid and sought a breakdown of how the figure had been calculated as required by the notice of hearing .[38]The latter point was a reference to the sole case management order then in place which required the claimant to set out within 4 weeks from 30 May 2018 what remedy the tribunal was being asked to award and any evidence and documentation supporting what is claimed and how it was calculated. Ms Jones had written to the tribunal pointing out the claimant’s noncompliance There was no other order for disclosure in place. I granted the claimant’s application for a postponement and decided the case management order dated 30 May 2018 should be replaced with orders for mutual disclosure (14 December 2018 ) the agreement and preparation of a bundle (21 December 2018 and the exchange of witness statements ( 14 January 2019).The adjournment was not solely due to the respondent having not provided relevant documents but also because ( as appeared to be the case) the claimant had not complied with the case management order dated 30 May 2018 and case management orders were needed to enable the parties to get ready for the final hearing .[39]The claimant’s twelfth allegation of unreasonable conduct was that in ‘March 2019 Hearing was adjourned and Judge Dean instructed Respondent their witnesses needed to be in attendance and to revise calculations incorporating regular overtime. The revised calculations were not provided until mid-July 2019 after the Claimant contacted the Court. The Respondent had substantially altered the way in the calculations were done and not simply factoring in overtime in order to further limit liability. The Respondent had admitted unlawful deductions and underpayment for all assignments but had now decided they were no longer owed for assignment 2 and 3 because they argued they were out of time. This was legally incorrect and we found this position morally abhorrent but consistent with the Respondent's underhand conduct.’ Ms Jones submitted that Employment Judge Dean had said that witnesses should be in attendance and revised calculations were required. The postponement was for several reasons and was not limited to the absence of the respondent’s witnesses and the calculations. Employment Judge Dean had asked her if she could explain the calculations and she had said she could not because a colleague had prepared them. She had then prepared a calculation and provided it on 5 July 2019.Another factor was the size of the bundle and the time estimate for the hearing ( 1 day ) .Mrs. Bell was in attendance but she had not prepared a witness statement and Employment Judge Dean had said such a witness statement was required because the respondent could not cross-examine her without such a witness statement. As far as the out of time point was concerned in July 2019 the respondent had notified the claimant of the Bear Scotland case the effect of which was that the respondent had concluded no payments for two assignments was payable and only the third assignment could be considered. She submitted contrary to what was said by Ms Javed the respondent’s position was legally correct and the respondent had not been underhand about it; if it had been aware of the case earlier it would have notified the claimant.[40]Employment Judge Dean’s note indicates there were a number of problems at the final hearing listed for 7 March 2019 (time estimate 1 day) ;no witness statement had been prepared for Ms Bell who did not know the purpose of her giving evidence; the claimant wanted to amend the claim to include matters in relation to which the tribunal had no jurisdiction ( tax and NI ) and a TUPE claim but Employment Judge Dean told the claimant the only claims then before the tribunal were holiday pay and unpaid wages and other matters needed to be the subject of an amendment application; she noted Ms Jones was not proposing to call a witness to introduce its evidence . The parties agreed there were papers to be read and it would take longer than lunch time to complete the evidence and submissions. Employment Judge Dean therefore decided to postpone the case in view of the impossibility of concluding the case that day. She made no orders about the revision of calculations. It is entirely reasonable for the respondent to make admissions if appropriate and to draw to the claimant’s attention to a relevant case on which it intended to rely in relation to the issue of time limits ( a jurisdictional issue) . There is no evidence to support the assertion of consistently underhand conduct. I do not consider there was any unreasonable conduct by the respondent as alleged .[41]The claimant’s thirteenth allegation of unreasonable conduct was that the ‘Respondent insisted Claimant calculate losses over a three year period although they could have done this when they accepted monies were owed and were best placed to do so. This would have saved time and costs but demonstrates their lack of cooperation and obstructive behaviour. As a result the Court ordered the Respondent to produce a schedule of loss also. ‘Ms Jones submitted that the claimant was required to prove his losses and it was not for the respondent to prove the claimant’s case for him. The respondent had prepared and provided its calculations and co-operated with the claimant.[42]On 8 January 2019 on my own initiative I decided to make orders there should be a schedule of loss served by the claimant and a counter schedule served thereafter by the respondent because I thought this would be of help to the parties and the tribunal in narrowing the issues in dispute (both liability and remedy ) in dispute in relation to the claims of unpaid wages and holiday pay . I do not consider there was any unreasonable conduct by the respondent as alleged.[43]The claimant’s fourteenth allegation of unreasonable conduct was that the ‘Respondent's documentation was inconsistent due to records being incorrect and therefore this led to calculations being revised more than once and took up further time. The Respondent provided more than one schedule of loss which took up more time and start and end dates for assignments were not consistent either. ‘ Ms Jones submitted that the claimant had failed to provide any specific examples of any such incorrect records. I agree. I am not satisfied that the matters set out by the claimant in the eighth allegation amount to unreasonable conduct.[44]The claimant’s fifteenth allegation of unreasonable conduct was that ‘The claim involved the need for complex calculations requiring considerable time. Extensive excel spreadsheets had to be produced incorporating detailed formulas in order to calculate corrected weekly cumulative pay and holiday hourly pay rates. It also involved crossreferencing hundreds of documents (weekly timesheets, weekly payslips, holiday booking forms and bank statements) for a three-year period.’ Ms Jones submitted that the respondent had manually prepared its calculations as set out in its letter of 5 July 2019.It had had to bear its own costs in preparing the calculations and believed that the claimant should also bear his own costs.[45]The thrust of the fifteen allegation appears to be a complaint about how long it took the claimant to make necessary preparations for the hearing of his claim but does not contain an allegation of unreasonable conduct on the part of the respondent which ( as Ms Jones said) had to undertake a similar process.[46]The claimant’s sixteenth allegation of unreasonable conduct was that there were ‘further dishonest submissions to the Court including claims the Respondent had made payment to HMRC under an incorrect NI number and the matter was resolved. HMRC dispute this and advise they are still awaiting some £4000 that have been deducted from the Claimant's wages for the 2017-18 period. The Respondent is not advising why this matter remains unresolved and is not likely to unless further proceedings are initiated and continue to delay responding to queries about this’. Ms Jones submitted that the tribunal had confirmed in September 2019 that the tribunal had no jurisdiction in relation to HMRC and this was therefore irrelevant .In any event the allegations were untrue .A colleague had made several calls and eventually got an email address for HMRC .On 21 November 2019 the colleague emailed HMRC explained what had happened and asked for the reallocation of the deductions. The respondent had paid the correct amount. There was no follow up from the claimant or HMRC and the respondent believed the matter was closed.[47]The sixteenth allegation is of dishonesty. This is a serious allegation and requires cogent evidence ( not an assertion) to support it. However, whatever issues there were with HMRC, this was not a claim before the tribunal. The tribunal has no jurisdiction in these matters as was clearly explained to the claiamnt by Employment Judge Findlay ( see the Findlay Order) and this is wholly irrelevant for the purpose of a costs application in relation to the respondent’s conduct in these proceedings.[48]The claimant’s seventeenth allegation of unreasonable conduct was of the respondent ‘fraudulently amending date on a document signed by Claimant and not responding to why this was done for over a year’. The eighteenth allegation of unreasonable conduct was that ‘the Respondent manufactured assignment documents (for Employment Tribunal purposes) but had not been provided to Claimant as claimed’. Ms Jones said that the document in question was an interview check list. It was an internal document to ensure that all candidates were dealt with in the same way. A consultant had amended the date to ensure the claimant was paid on time .She submitted this was irrelevant to the claim. She also denied that the assignment documents had been fabricated and in any event that had nothing to do with the claim.[49]These too are serious allegations of fraud and fabrication of documents and require cogent evidence ( not assertions) to support them. There is none. In any event I accept Ms Jones submission that these matters have nothing to do with the claimant’s claim. The Costs Request[50]I have carefully considered the contents of the costs request. To the extent that in the first 17 paragraphs the claimant raises allegations about conduct which predate the presentation of the claim these cannot be treated as the act(s) of vexatiousness or unreasonableness upon which an award of costs can be founded ( see paragraph 9 above).Further it is not relevant to an assessment of whether it was reasonable for the respondent to defend the claims of holiday pay and unpaid wages. The claimant alleges that he was never given a clear response to his holiday pay queries .However it is clear that after his ‘letter of claim’ dated 19 February 2018 in which he sought confirmation of his holiday entitlement (in particular in relation to New Years’ Day 2018) and how holiday was booked (but not about its computation ) the respondent replied to what it described as his email of complaint and set out its position as far as these matters were concerned and advised if the claimant was dissatisfied to contact ACAS . The response was consistent with the respondent’s response to the claimant’s letter of claim dated 19 February 2018. In the preamble ( paragraph 2 ) the claimant alleged the ET3 was factually incorrect and believed to be deliberately misleading. It had denied the claim and falsely stated the claimant had received all pay entitlements .They did not inform the ‘Court’ the claimant was an agency worker due to their awareness they were in breach of the Regulations ,The ET3 falsely claimed the claimant had been supplied with documents when he had not .There was no factual or legal basis for the defence, which was described as an ‘exercise in subterfuge’. For the sake of completeness I have already addressed the respondent’s response within paragraph 20 above and have already stated there was no claim under the Regulations before the tribunal .The allegation is that the claimant believed the ET3 to be deliberate misleading. That he believed this to be the case is not evidence that the respondent had acted in a way which was deliberately misleading. The word ’subterfuge ‘ implies deceit ( yet another serious allegation) but again there is no evidence to support this.[51]Paragraph 18 sets out what the ET1 says and contains no allegation of unreasonable conduct on the part of the respondent. As far as paragraph 19 ( a complaint about the adequacy of the response) is concerned again this has been addressed in paragraph 20 above.[52]In Paragraph 20 the claimant complains of deliberate impediment by the respondent in the calculation of monies due, the dishonest suggestion by the respondent that they had been unable to gather documents and that the court was deliberately misled by the respondent. Despite the serious nature of the allegations made there is no evidence to support them .Paragraph 21 ( in which the claimant explains the rationale for obtaining a witness order for Ms Bell) contains no allegation of unreasonable conduct by the respondent .[53]In paragraph 22 the claimant complains about the non-provision of a P45 and PAYE reference number. However, the unreasonable conduct must relate to the way these proceedings were conducted by the respondent and the tribunal has no jurisdiction in relation to those matters.[54]In paragraph 23 the claimant complains about the non-provision of a contract of employment under the Regulations but there was no such claim before the tribunal so this is irrelevant for the purposes of a costs application. He also complains that the respondent told the tribunal the claimant was not an employee when the P45s and P60s state the respondent was his employer. In the context of a claim for non-payment of wages and holiday pay this issue is irrelevant. This was made abundantly clear to the claimant during the preliminary hearing conducted by Employment Judge Findlay ( see paragraphs 14 15 and 16 of the Findlay Order) . It cannot amount to unreasonable conduct by the respondent.[55]In paragraph 24 the claimant complains of the non-provision of a wage slip in relation to the consent judgment settlement monies but ( whether or not this ought to have been provided to the claimant ) this was not conduct of the respondent in the way the proceedings were conducted. The proceedings ( for liability purposes ) were at an end on signing of that judgment .[56]In paragraph 25 the claimant complains of the alleged effect of the respondent’s ‘general unlawful conduct’ on the claimant’s tax affairs but any such conduct (whatever it was -which is not particularised) is wholly irrelevant for the purpose of a costs application in relation to the respondent’s conduct in these proceedings. As far as paragraph 26 is concerned ( which concerns the rescheduling of the hearing on 7 March 2019) I have already addressed this in paragraph 39 above.[57]In paragraph 27 the claimant says he did not understand Employment Judge Dean’s instructions about adding to his claim but that cannot be an allegation of unreasonable conduct on the respondent’s part .[58]In paragraph 28 the claimant sets out the matters he sought to include in his claim in his letter of 16 May 2019 and the respondent’s response but fails to explain why this amounts to unreasonable conduct by the respondent.[59]In paragraph 29 the claimant says the respondent always understood the claimant was making a complaint/claim were about the Regulations but no such claims were ever before the tribunal.[60]Paragraphs 30 to 35 contain no allegations of unreasonable conduct on the part of the respondent ;they set out an account of the hearings before Employment Judge Findlay and before me.[61]In paragraph 36 the claimant alleges a evasive and dishonest strategy in dealing with the claimant’s complaints and claim intended to avoid openly acknowledging their (the respondent’s) deliberate systematic unlawful practices. This is a serious allegation of wrong doing and as I have previously stated requires cogent evidence ( not an assertion) to support it. There is none. It also complains of the respondent’s alleged failure to narrow the issues and clarify points raised with them but implicitly acknowledges that by 5 July 2019 ( 3 months before the final hearing) by its letter to the claimant of same date the respondent had addressed this. If so and this was unreasonable conduct ,it is difficult to say what difference in terms of costs or the conduct of the claim it would have made if the claimant had had any such information before 5 July 2019 . This would not apparently have encouraged settlement at an earlier stage because although an offer of £3000 to settle the claim ( quantified in the sum of £496.13 ) was made in the respondent’s letter of 5 July 2019 it was evidently rejected and by the time the matter came before me the parties still had not identified the issues in dispute.[62]In paragraph 37 the claimant complains of non-adherence to the ACAS Code :Disciplinary and Grievance Procedures. Had the claims succeeded then unreasonable noncompliance with a relevant code might have had relevance to the issue of compensation but the unreasonable conduct alleged predated the presentation of the claim and cannot be treated as an act of unreasonableness upon which an award of costs can be founded.[63]Paragraphs 39 and 40 contain no allegations of unreasonable conduct on the part of the respondent ;they simply identify the individuals at the respondent who the claimant said handled his complaints and allege that the respondent was aware of the Regulations and had intentionally not complied with the complaints regime thereunder, notwithstanding its documentation. As has already been stated no claim under the Regulations was ever before the tribunal.[64]Paragraph 41 contains an allegation of the lack of a genuine dispute as to monies owed borne out of wilful intentional systematic unlawful conduct aimed at cheating the claimant and others out of their pay to the respondent’s financial gain. At the risk of repetition these are serious ( and wholly unparticularised allegations) of wrongdoing and require cogent evidence ( not assertions) to support them. There is none. It was also claimed that the respondent was ‘reasonably aware’ that monies were due but dishonestly claimed otherwise. The response was not prepared by Ms Jones but by a colleague .Ms Jones took over conduct of the proceedings after her return from maternity leave in July 2018.I do not know (because there is no evidence about this) what that colleague knew or did not know (or ought to have known ) at the time the response was prepared but there is no evidence of dishonesty. The response was consistent with the respondent’s response to the claimant’s letter of claim dated 19 February 2018 ( see above paragraph 50). It was alleged there was not a grain of truth in the response. The respondent accepted in a revised calculation that £496.13 gross was owed to the claimant in its letter of 5 July 2019 and made an offer to settle of £3000 but it does not follow that at the time the response was presented the response to the claim as it was pleaded had no reasonable prospect of success. It was also claimed the respondent was not compliant with the Regulations but there was no such claim before the tribunal.[65]As set out above looking at the whole picture of what happened in this case I have not found that the respondent has acted unreasonably as alleged in the way it conducted the proceedings or that the response had no reasonable prospect of success. It follows that the application for a preparation time order or a costs order is refused.