Miss Scarlett TysonClaimantListers Group LimitedRespondentDate 28 April 2025
JUDGMENT
[1]No order for costs is made on the Respondent’s written application for costs dated 28 June 2024.
REASONS
[1]Following a hearing that took place between 24 and 27 June 2024, the Tribunal dismissed the claimant’s complaints of harassment, direct sex discrimination, victimisation and constructive unfair dismissal.[2]The Respondent duly submitted a costs application on 28 June 2024 on the basis of improper or unreasonable conduct by the Claimant that caused substantial costs to be incurred by the Respondent. The Respondent’s primary assertion is that costs should be ordered against the Claimant under rule 80 of the ET Rules on grounds that it was improper or unreasonable for her to pursue claims which were hopeless or doomed to fail. Further, the Respondent submits that in cross-examination, the Claimant conceded a large number of the underlying facts and often only challenged the Respondent’s case that was put to her, which comes close to amounting to an abandonment of her case at the hearing.[3]The Claimant provided her response to the Respondent’s application on 7 July 2024. The Claimant states her decision to proceed with the claims was made based on legal advice as well as her genuine belief in the merits of her case. She does not accept that this was improper or unreasonable conduct. Further, the Claimant states that her approach during cross-examination was to be truthful and concede facts where appropriate; she does not accept that this amounts to an abandonment of her claim[4]There has been an unfortunate delay in the Tribunal determining the Respondent’s application, primarily as a result of being unable to re-constitute the original Tribunal, due to significant difficulties with panel availability. As a result of these difficulties, the parties’ consent was sought to allow the matter to be determined, based on written representations by the Employment Judge sitting alone. The parties provided their consent, and the matter was subsequently listed before me for determination at the earliest available opportunity.
Relevant Law
[5]It should be noted that since the Respondent’s application, the Employment Tribunal Rules have been subject to amendment. Whilst there have been no substantive changes to the rules in respect of costs, the numbering of relevant rules has been amended. For the avoidance of doubt, the reference to the rules below reflects the amended Employment Tribunal Rules of Procedure 2024.[6]Rule 78 Employment Tribunal Rules of Procedure 2024 provides in relevant parts: 78.(1) A Tribunal may make a wasted costs order against a representative in favour of any party (“the receiving party”) where that party has incurred costs— (a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. Costs so incurred are described as “wasted costs”.(2) “Representative” means a party’s legal or other representative or any employee of such representative, but it does not include a representative who is not acting in pursuit of profit with regard to the proceedings. A person acting on a contingency or conditional fee arrangement is considered to be acting in pursuit of profit.(3) A wasted costs order may be made in favour of a party whether or not that party is legally represented and may also be made in favour of a representative’s own client. A wasted costs order may not be made against a representative where that representative is representing a party in his or her capacity as an employee of that party.[7]Rule 74 Employment Tribunal Rules of Procedure 2024 provides in relevant parts: 74 (2) 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; or(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins.[8]Rule 82 Employment Tribunal Rules of Procedure 2024 provides: 82. In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.[9]Costs orders are the exception rather than the rule in employment tribunal proceedings, but that does not mean that the facts of the case must be exceptional (Power v Panasonic (UK) Ltd UKEAT/0439/04).[10]In terms of abusive, disruptive or unreasonable conduct, “unreasonableness” bears its ordinary meaning and should not be taken to be equivalent of “vexatious” (National Oilwell Varco UK Ltd v Van de Ruit UKEAT/0006/14).[11]Guidance has been given by the Court of Appeal in Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78 on the approach to assessing unreasonable conduct: “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”.[12]The tribunal does not need to identify a direct causal link between the unreasonable conduct and the costs claimed (MacPherson v BNP Paribas (London Branch) (No 1) [2004] ICR 1398).[13]The Respondent applies for wasted costs under rule 80 (now rule 78) against the Claimant who was unrepresented throughout proceedings. Under the Employment Tribunal rules, a wasted costs order under rule 78 can only be made against a ‘representative’ and therefore is not applicable to an unrepresented litigant. In such circumstances, I dismiss the Respondent’s costs application under rule 78.[14]Having considered the application and the Claimant’s response, I set out my reasons below as to why I would also have rejected the Respondent’s application even if they had pursued an application for costs under rule 76.[15]I start with the general proposition that costs awards are fact specific. The discretion should be exercised in accordance with the overriding objective to achieve the outcome which is fair and just in the circumstances.[16]Whilst the claimant was unsuccessful in all aspects of her claim, this does not necessarily support the argument that she did not have an arguable case to put before a tribunal. The primary reason the claimant was unsuccessful was because she did not present direct evidence in respect of the facts that she relied upon. I take into account the claimant was unrepresented, and the presentation of her case should not be judged against the same standards as that of a legally represented claimant. I find the claimant acted in good faith and she held a genuine belief that she had been discriminated against and unfairly dismissed. In such circumstances, she was entitled to pursue her claims before an employment tribunal. I conclude that the Claimant’s conduct in bringing her claims was not unreasonable.[17]Whilst I conclude the Claimant’s presentation of her case at final hearing was lacking in evidential aspects, I do not see this as a deliberate action on her part, rather it reflects her limited legal skills, which would be in keeping with a litigant in person. With regard to the Claimant’s concessions in cross-examination, I also do not find this to be unreasonable conduct or an abandonment of her claims. I accept the Claimant was being truthful and conceding matters where she felt appropriate. Ultimately, the Tribunal did not make any findings that the Claimant was untruthful in her evidence; she was unsuccessful in her claims because she presented insufficient evidence to prove her claims.[18]In light of my conclusions above, I do not find that the respondent has established that the Claimant’s conduct reached the threshold of unreasonable conduct. In the circumstances, had the Respondent presented the application appropriately under rule 76, I would have made no order for costs against the Claimant. Approved on: 28 April 2025