Mr C Mallon v Energy Systems Catapult Ltd: 1306502/2020

EMPLOYMENT TRIBUNALS

Case No 1306502/2020

Between

Mr C MallonClaimant

Energy Systems Catapult LtdRespondent

Before

Employment Judge Edmonds

In person for claimant

Mr A O’Neill (instructed by solicitor) for respondent

Date 27 June 2024

JUDGMENT

[1]The claimant is ordered to pay the respondent the sum of £2,500 as a contribution towards the respondent’s costs.

REASONS

There is no reasonable prospect of the original decision being varied or revoked, because (having regard to the numbered grounds put forward by Mr Mallon):

Introduction

[1]Insufficient consideration of Mr Mallon’s disability: Mr Mallon’s disability was taken into account by the Tribunal in reaching the decision to make a deposit order and the amount of that order. However, Mr Mallon is an experienced litigant as noted in the reasons given who presents complex legal analysis when submitting and pursuing claims. He has attended a number of hearings at which deposit orders have been considered before and during the hearing he was asked by the Tribunal whether he had an understanding of the issues for that hearing and he confirmed that he did. It is acknowledged that the claimant indicated that he is better at talking not writing, but he was able to (and did) make oral submissions before any decision was reached. Mr Mallon had known to provide evidence of the amount he had in one particular bank account. In addition, before reaching any decision the Tribunal asked Mr Mallon a number of very specific questions in order to obtain the financial information necessary to reach a decision on the amount of any deposit order. In those circumstances it cannot be said that his disabilities have hindered his ability to navigate the hearing on 19 June 2024 or to present a complete financial picture of his financial circumstances.

[2]Disregard for Previous Tribunal Decisions: the decision to issue a deposit order did not solely rely on the decision in the case against Electus Case No: 1306502/2020 Recruitment Solutions Limited. Other cases referred to by the parties were considered, as well as the legal and factual position more generally.

[3]Misinterpretation of AI scoring: the AI scoring was not dismissed by the Tribunal. Concern was raised that Mr Mallon’s case is essentially that AI scoring should be preferred over the evidence of the respondent, a recruitment agency and the findings of another Tribunal, however it was acknowledged that the fact that the claimant now relied on AI scoring meant that it could not be said that the claimant had no reasonable prospect of success (but that nevertheless he still had little reasonable prospect of success). This was one of the reasons why the claim was not entirely struck out at this stage and only made subject to deposit order.

[4]Potential for Substantial Disadvantage: No conclusions have been reached, however it was determined that the claimant has little reasonable prospect of showing substantial disadvantage. In circumstances where another Tribunal has already made a finding to that effect in relation to the same role, it was appropriate to determine that Mr Mallon has little reasonable prospect in this regard.

[5]Financial hardship: it was acknowledged in the Deposit Order that the level of the deposit set was relatively high and specific reasons were provided for that. The Tribunal determined that Mr Mallon could access sufficient funds if required.

[6]Recent Job Application Rejection (2024): had this information been provided at the hearing, it would not have changed the findings and conclusions reached.

[7]Potential Types of Discrimination: whilst it is acknowledged that the final issues in the case had not been identified prior to the preliminary hearing, discussions took place before the application for strike out and/or deposit order were considered to ensure that the parties and Tribunal understood what the allegations were. Whilst they might require further refining before a final hearing, the core factual issues remain unchanged, nothing in the revised legal framework contained in the claimant’s application for reconsideration would have changed the Tribunal’s decision to issue a deposit order in circumstances where another Tribunal has already determined that the claimant did not meet the minimum requirements for the role in question. Employment Judge Edmonds 27 June 2024 Case No: 1306502/2020 1 EMPLOYMENT TRIBUNALS Claimant: Mr C Mallon Respondent: Energy Systems Catapult Ltd Heard at: Birmingham On: 14 November 2024 Before: Employment Judge Edmonds Representation Claimant: In person Respondent: Mr A O’Neill, solicitor JUDGMENT having been sent to the parties on 15 November 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013 (at the hearing on 14 November 2024), the following reasons are provided:

[1]The claimant is autistic and has ADHD and dyspraxia.

[2]This hearing was to deal with a costs application made by the respondent following a hearing on 19 June 2024 at which I ordered that a deposit be paid by the claimant of £250 per allegation, amounting to £500 in total, on the basis that his claims had little reasonable prospect of success.

[3]The claimant did not pay that deposit and his claim was therefore dismissed, however he also submitted an appeal to the EAT in respect of the decision to issue a deposit order. That was dismissed at the sift stage, although the claimant initially said at this hearing that he had not heard anything since he filed his appeal. For the avoidance of doubt, I do not accept that the claimant did not know what happened in relation to his appeal. Whilst it is true that he has a large number of claims in the Employment Tribunal and Employment Appeal Tribunal, and whilst he is autistic and has dyspraxia and ADHD which can affect processing times, I Case No: 1306502/2020 2 find that he would have had an awareness of what had happened in this case, particularly given that he knew that he had a hearing today to consider matters relating to that case and so no doubt had spent time considering this case in advance of the hearing.

[4]The respondent seeks recovery of its costs, capped at £20k, in respect of this claim as a whole. Its total costs are spread across fees from two law firms, initially Gowling WLG LLP (“Gowling”) and subsequently by Chambers O’Neill Solicitors Limited who represented the respondent at this hearing. Gowling’s fees amounted to approximately £12,084 (page 79) and Chambers O’Neill’s fees to 7 October 2024 were £10,359. I had a full breakdown of the fees from Chambers O’Neill Solicitors Limited (page 112) and various invoices from Gowling (page 63, 65 etc).

Issues

[5]There were two overarching grounds for the respondent’s application:a. That the claim had had no reasonable prospects of success; and

b. That the claimant had acted unreasonably and/or vexatiously in the way that the proceedings (or part) have been brought and/or conducted.

[6]In respect of each of these, the issues that I have to consider are:a. Did the claim have no reasonable prospects of success and/or had the claimant acted unreasonably and/or vexatiously in the way that the proceedings (or part) have been brought and/or conducted (respectively)?

b. If so, is it appropriate to make an order that the claimant be required to pay some or all of the respondent’s costs up to £20k?

c. If so, how much? Procedure, Documents and Evidence Heard

[7]At the outset of the hearing I discussed what adjustments the claimant might need to be able to fully participate in the hearing. He explained that he required short closed questions broken down as much as possible, and that if he were to “go off subject” he requested that the Tribunal bring him back to the relevant topic. He also requested breaks of approximately five minutes every 45 mins or thereabouts. I agreed to these adjustments.

[8]I was presented with a file of documents amounting to 272 pages, and page references in these Reasons are to the relevant page number of that file. Within that file was some documentation regarding the claimant’s autism, dyspraxia and ADHD, although nothing specifically about any impact it would have on the way that he conducts litigation. Case No: 1306502/2020 3

[9]In addition, the claimant had sent a number of separate emails to the respondent and Tribunal in the days leading up to this hearing, some of which the respondent had managed to add to the file and some of which it had not (as they were sent after the file had been submitted to the Tribunal).

[10]The claimant had not prepared a witness statement for the hearing but we agreed to use one of his emails from the previous day, sent at around 10pm, as the basis for his witness evidence. This email had listed some information about the claimant’s income and outgoings so was relevant to his ability to pay any deposit order. The claimant gave oral evidence to supplement this document.

[11]Following that evidence, both parties gave oral submissions. I was able to deliver my decision orally on the day, and the claimant confirmed that as a costs order had been issued against him he requested written reasons.

Facts

[12]The clamant is a highly intelligent individual who has submitted a large number of claims in the Employment Tribunal in relation to a large number of separate job applications that he has made.

[13]The claimant had applied for the role of Technical Manager at the respondent, initially through an agency, Electus Recruitment Solutions Limited on 4 May 2020 and then directly to the respondent on 6 May 2020. His CV referred to his dyspraxia (his autism and ADHD not having being diagnosed when he made that application) and requested an oral application along with the essential criteria in advance. The oral application took place on 2 June 2020 and the claimant was informed that he was unsuccessful on 15 June 2020. I refer to the Reasons from the hearing at which the deposit order was issued on 19 June 2024 which provides additional detail regarding the background to the claimant’s application.

[14]What is important to note, however is that the claimant had separately submitted a claim in the Employment Tribunal against Electus Recruitment Solutions in respect of his application through them for the same role (1403362/2020). The Judgment of the Employment Tribunal in that case made a number of findings about the role, and specifically found that the claimant failed to meet the majority of the minimum requirements for the role. That Judgment was issued some time before the hearing on 19 June 2024 in this case at which a deposit order was issued, and one reason why I determined that the case had little reasonable prospect of success was that another Tribunal had already concluded that the claimant did not meet the requirements for the role that he applied for. It is also relevant to note that the claimant did not disclose the fact of or outcome of claim Case No: 1306502/2020 4 1403362/2020 to the respondent in this case, who discovered it through other means.

[15]On 11 January 2024 the claimant was sent a costs warning by the respondent. This set out the fact that a different Tribunal had already concluded that the claimant did not meet the requirements of the role which he had applied for, that he had continued with his claim notwithstanding that, and that costs had been awarded against him in that case in part because “the claimant is unrealistic in applying for roles for which he has no relevant experience and that this was the case in relation to the role of Technical Manager at Energy Systems Catapult” (this was the finding in claim 1403362/2020). The claimant was advised that in his oral application with the respondent in the current claim, the respondent had reached the same conclusion (i.e. that he did not meet the requirements for the role). The costs warning encouraged the claimant to seek legal advice.

[16]Following the Judgment in the claim against Electus Recruitment Solutions dated 19 September 2022, the respondent in this claim applied for the claim against it to be struck out on the basis that it had no reasonable prospects of success, or alternatively that a deposit order be issued. This is the application that I heard on 19 June 2024. At that hearing the claimant argued that this claim was different because it related to an oral application, however I found that the issue remained that, if he was not suitable for the role then adjustments to an oral application would equally not remove any substantial disadvantage because he would remain unsuitable for that role.

[17]The claimant had also submitted that he had since used artificial intelligence to assess his suitability for the role and that had informed him that he was a strong match for it. Whilst I found that there were a number of weaknesses in his case, including the fact that another Tribunal had already examined the role in question and found him unsuitable, I considered that given his argument about artificial intelligence and given that the other Tribunal’s decision was first instance and therefore not technically binding upon me, I did not conclude that the claimant had no reasonable prospects of success. I did however conclude that he had little reasonable prospects of success, and made a deposit order on that basis.

[18]The claimant did not pay the deposit, and his claim was ultimately struck out on that basis on 30 July 2024. It was not surprising that he did not do so, as during the hearing on 19 June 2024 (and repeated at this hearing) he had commented that he had a standard practice of not paying deposit orders, on the basis that the Citizen’s Advice Bureau had told him that this meant he had a weak case. Case No: 1306502/2020 5

[19]The claimant applied for reconsideration of my decision to issue a deposit order on 20 June 2024 and appealed to the Employment Appeal Tribunal on 18 July 2024. This was despite him having indicated shortly prior to me giving oral reasons in the matter on 19 June 2024 that he was considering withdrawing his claim entirely. I consider based on the indications given by the claimant at that time that the reason he was considering withdrawing his claim at that stage was to avoid having any written reasons which might be used by other respondents against him in order proceedings.

[20]During the course of this hearing on 14 November 2024 the claimant commented that he understood that his claim against the respondent was weak. I asked him to explain what he meant by this, given that he had chosen to apply for reconsideration and to appeal to the Employment Appeal Tribunal. He said that he “got it double checked” and that because the Employment Appeal Tribunal had confirmed that there was nothing wrong with my decision there was a “rubber stamp by a secondary source”. I find that the claimant’s decision to apply for reconsideration and to appeal to the Employment Appeal Tribunal was not motivated by any specific analysis of the Tribunal’s decision, but was again part of his standard process in such matters.

[21]On 16 August 2024 it came to the respondent’s attention that there was a sift decision of the Employment Appeal Tribunal dated 1 June 2024 relating to the Electus case (page 95). The respondent requested a copy of that decision from the claimant however the claimant initially resisted disclosure of that document, although it should be noted that later that day he did disclose it to the respondent. Whilst he did disclose it once it became apparent that the respondent was going to continue to press for it, I consider that the reason he initially did not do so was because it was unhelpful to his case.

[22]This hearing had been scheduled to take place on 8 October 2024, however it had to be postponed as it clashed with another hearing which the claimant was required to attend in relation to a different Employment Tribunal claim against a different respondent. The claimant initially refused to provide details of that other matter (and so the application for postponement was initially refused) and it was only after the respondent pressed the point that eventually the claimant backed down and provided the details. Again I consider that the reason why he did not do so was because he was concerned that it could be unhelpful to his case for the respondent to be aware of his other Tribunal proceedings. The claimant says that he did not know that this was required and that, once he was made aware of that he did disclose it. He did ultimately disclose it, but this first necessitated extensive correspondence with the Tribunal. The claimant had previously copied the respondent on correspondence as a matter of course and I Case No: 1306502/2020 6 consider that the claimant was choosing not to on that occasion in the hope that the respondent would not receive full details of the other claim.

[23]The claimant gave evidence regarding his financial means at the hearing. I find that:a. He receives PIP in the sum of approximately £125 per month, and is awaiting a first payment of universal credit;

b. He does not have paid employment at present, however he does have a separate ebay endeavour. He says that his earnings from this are £758 per month, and that the turnover is £30,000 per year, however the respondent pointed to the Judgment of the Employment Tribunal in the case of Mr C Mallon v Surface Transforms plc on 7 October 2024 (2411246/2023) (page 255) where it was found (at page 261, paragraph 6.2.3.5) that he had a turnover of £70,000 per year. The claimant had failed to provide evidence of that turnover in advance (see below conclusions on this failure) and in those circumstances I cannot accept the figure quoted by the claimant as being correct. I do not feel able to say exactly what the turnover was, but do note that his income from this would be variable.

c. He pays £600 in rent each month, along with addition utility and council tax bills, internet/phone bills, food, transportation costs and credit card bills. He is also due to start paying child maintenance payments.

d. Whilst not set out in his email regarding his financial situation, the claimant also owns three properties, each subject to a mortgage, as follows: i. One which he previously shared with his ex-partner, and which is jointly owned by his ex-partner. This is subject to a mortgage of around £161,850 which at the hearing on 19 June 2024 resulted in repayments of £943 per month. The property has not been recently valued however the claimant said that the online estimated valuation is £310,000. ii. A house in Belfast which had previously been owned by his mother. This has a mortgage of around £105,000. He rents this property out and secures a rental income on it, which goes through his business accounts. He has to pay for repairs on the property and on some occasions this means that the property makes a loss in a particular month once that is taken into account. iii. A flat in Aberdeen. This was previously rented out but is not in the process of being sold for £37,000 to pay the claimant’s debts. This property is mortgage-free. Case No: 1306502/2020 7

e. The claimant has had at least two costs awards made against him in respect of other Tribunal proceedings, one in the sum of £18,000 and one in the sum of £20,000. He intends to use the proceeds from the sale of the property above to fund these.

f. The claimant is an intelligent man and, although he does not currently have paid employment, he applies for a large number of positions and has previously been employed in relatively well paid positions. He continues to seek paid employment.

Law

[24]Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”) provides (so far as relevant): (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; or c) …. These are sometimes referred to as the threshold tests for an award of costs.

[25]Rule 78 of the ET Rules addresses the amount of a costs order, as follows (so far as relevant): (1) A costs order may – a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party. b) …. c) …. d) …. e) ….

[26]Section 84 of the ET Rules provides: 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 party party’s (or, where a wasted costs order is made, the representative’s) ability to pay.

[27]Although the threshold tests are the same whether or not a party is legally represented, a litigant in person should not be judged by the standards of a professional representative (AQ Ltd v Holden [2012]

UKEAT/0021/12/CEA

). Case No: 1306502/2020 8

[28]When considering the question of unreasonable conduct, “unreasonably” should be given its ordinary English meaning and the Tribunal should take into account the nature, gravity and effect of the party’s conduct (although not necessarily separated into individual sections) (Dyer v Secretary of State for Employment [1983] UKEAT 183/83 and Yerrakalva v Barnsley Metropolitan Borough Council and anor

2012 ICR 420

, CA). A party’s conduct as a whole may amount to unreasonable conduct and making unsubstantiated allegations is capable of amounting to unreasonable conduct (Sahota v Dudley Metropolitan Borough Council EAT 0821/03). Every aspect of the proceedings is relevant.

[29]The key question is not whether a party believed their claim had prospects of success, but whether they had reasonable grounds for doing so (Scott v Inland Revenue Commissioners

2004 ICR 1410

, CA). The Tribunal should assess whether the claim had no reasonable prospect of success based on the information that was known or reasonably available at the time (and not take into account information that only came to light at a later stage). Even if there are disputes of fact, that does not mean that the Tribunal cannot conclude that there were no reasonable prospects of success at the outset (or that the claimant should reasonably have known that), as this will depend on what the claimant knew or ought to have known what the true facts were (Radia v Jefferies International Ltd EAT 0007/18 and Vaughan v London Borough of Lewisham and ors

2013 IRLR 713

EAT).

[30]The question of whether a claim had no reasonable prospects of success may overlap with the question of unreasonable conduct (Opalkova v Acquire Care Ltd [2021]

UKEAT/0056/21

). There are three key questions: a) Did the complaints have no reasonable prospects of success? b) If so, did the claimant know or appreciate that? c) If not, ought they reasonably to have known or appreciated that?

[31]Where the threshold test under Rule 76 of the ET Rules has been met for an award of costs, it is still necessary for the Tribunal to decide whether it considers an award of costs to be appropriate (Yerrakalva, above). Whether or not a costs warning letter was sent is relevant but not determinative: the weight it should be given will depend on the circumstances of the case (Vaughan, above). Where a party is disabled, it will be relevant to consider the impact of that disability on their conduct.

[32]Costs are intended to be compensatory rather than punitive, and are limited to those reasonably and necessarily incurred by the other party. They are Case No: 1306502/2020 9 the exception and not the rule. A precise link between the unreasonable conduct and the costs incurred is not required (D’Silva v NATFHE

[2009] UKEAT 0126/09

and Salinas v Bear Stearns International Holdings Inc and anor

2005 ICR 1117

, EAT). In Sud v Ealing London Borough Council 2013 ICR D39, CA, it was held that the process did not entail a detailed or minute assessment, but rather a broad-brush approach taking into account the relevant circumstances.

[33]When taking into account ability to pay, this should include assets as well as income. A costs award can be made even where a party cannot afford to pay it immediately (Vaughan, above). Conclusions No reasonable prospects of success

Conclusions

[34]At the preliminary hearing on 19 June 2024, I determined that the claimant’s claim was very weak. However, I declined to strike it out on the basis that it had no reasonable prospect of success, concluding instead that it had little reasonable prospect of success and noting that I considered his prospects to be “only just short of the threshold for striking out entirely”. One particular reason why I declined to strike the claim out was because, in contrast to the arguments put forward in the Electus case (which was about the same role), on this occasion the claimant asserted that he had used AI software which had informed him that he was a close match to the role in question.

[35]Whilst the claimant was very close to the threshold for striking out, and whilst there are separate issues relating to his approach to dealing with Tribunal claims more generally (see unreasonable / vexatious conduct below), in these circumstances I do not conclude that the claim had no reasonable prospect of success. Unreasonable / vexatious conduct

[36]Turning to whether there was unreasonable conduct, and/or vexatious conduct. For the most part, the respondent relies on the word “unreasonable”, however I also reference “vexatious” because this word was used on two occasions by the respondent in submissions. I have focused however on “unreasonable” which is the thrust of the argument and generally where I have not found unreasonable conduct, I have equally not found the conduct to be vexatious. Where I have found unreasonable conduct, I do not consider it necessary to also consider whether it was vexatious.

[37]I recognise that the claimant is autistic, with ADHD and dyspraxia. I was presented with some medical information about his health and also with some statements from his ex partner and from mentors/coaches about the Case No: 1306502/2020 10 impact of his conditions (although none of those individuals gave evidence to the Tribunal). None of these address specifically the impact of those on his conduct during legal proceedings and any propensity to conduct litigation in a certain way, however I do take account of the fact that these, when read as a whole, do indicate that the claimant’s conditions impact on his processing time. It also indicates that things are either right or wrong (with no grey area) in the claimant’s mind, along with a tendency to communicate as a “stream of consciousness”.

[38]I also take into account that Mr Mallon is a highly intelligent individual who is very familiar with Employment Tribunal proceedings and has a good understanding of the processes followed by the Tribunals, despite his autism, ADHD and dypraxia.

[39]Overall, in relation to the impact of his conditions on the claimant insofar as it is relevant to the matters to be determined at this hearing, is that it can take the claimant longer than neurotypical individuals to understand the details of what he is told in correspondence, and I accept that he will tend to look for a right or wrong answer. However, given his intelligence and familiarity with Employment Tribunal litigation I find that with time to review and reflect, he is capable of fully understanding what is being said to him and to analyse that properly.

[40]The alleged unreasonable / vexatious conduct can be split into various categories of acts and I deal with each in turn: Failing to pay the deposit / approach to Tribunal litigation

[41]The respondent submits that the claimant’s failure to pay the deposit should be treated as akin to a withdrawal of his claim. As a general proposition, a key purpose of a deposit order is to make it clear to a party that their argument has little reasonable prospects of success, precisely to encourage them to think carefully about whether to continue with such an allegation. It can be argued to be somewhat counter to this if it were the case that the individual should then be penalised for reflecting on their claim, and deciding to accept the reservations of the Judge and therefore not pay the deposit.

[42]This case is not however that simple, as the reason why the claimant did not pay the deposit was not because he had analysed the prospects of success and decided, having done so, that I was right that his prospects were weak. Nor was it because he could not afford the deposit (although I note he does make submissions about his financial situation, I consider that he could have afforded it if he wished to do so).

[43]Rather: Case No: 1306502/2020 11a. As explained by the claimant during the hearing today and on 19 June 2024, the claimant has a policy of not paying deposits when they are ordered, as the Citizen’s Advice Bureau has advised him that the fact it has been ordered means he has a weak case. This is therefore a blanket approach and does not result from any careful or considered analysis of his claim.

b. Despite this, the claimant proceeded to apply for reconsideration of my decision (and in fact did so before receiving the written reasons) and to submit an appeal to the Employment Appeal Tribunal so that the Tribunal’s decision could be “double checked” and “rubber stamped”.

[44]From this I conclude that the claimant has a set pattern of approaching litigation, without reflecting upon the actual merits of the particular claim or the reasoning that he has been given.

[45]It is not the role of the Employment Appeal Tribunal to rubber stamp or double check decisions, their role is to consider cases where individuals or organisations genuinely believe, having reviewed the details of their specific issues, that an error has been made by the Employment Tribunal which needs correcting. In saying this, I do not in any way detract from a party’s ability to seek redress in the Employment Appeal Tribunal nor would I criticise a party for doing so in circumstances where they believe that an error has been made.

[46]Likewise, whilst I do understand that there is some logic to the claimant saying that the fact a deposit has been issued makes him consider that his prospects must be weak, it is not reasonable to have a blanket approach of continuing with legal proceedings until a deposit order is issued, and only then to not pay the deposit (which is what I consider the claimant’s approach to be), rather than withdrawing or considering merits at an earlier stage. I also take into account the claimant’s autism, ADHD and dyspraxia and in particular the impact on his processing time, the tendency to consider things to be either right or wrong and the tendency to communicate as a “stream of consciousness”. Notwithstanding this, I consider that the claimant is able to review the reasoning provided to him and to take a considered decision as to whether to what action to take next. This is particularly so given my conclusions about his “selective evasiveness” as referenced below.

[47]I conclude that the claimant’s decision to continue with these Tribunal proceedings until a deposit order was issued against him, to apply for reconsideration of the decision to issue a deposit order and to appeal to the Case No: 1306502/2020 12 Employment Appeal Tribunal were all done because this is the claimant’s standard approach, not because of the particular circumstances of this case. Whilst I have regard to the fact that the claimant is a litigant in person and has autism, ADHD and dyspraxia, I consider that he is experienced in Tribunal litigation and I consider that there has been unreasonable conduct. Failure to disclose documents/information

[48]There were a number of occasions where it was submitted by the respondent that the claimant had been “selectively evasive”. These words are taken from the findings of the Employment Tribunal in the case of Mr C Mallon v Surface Transforms PLC 2411246/2023 on 7 October 2024, at paragraph 6.4.4 of those Reasons. In particular, in relation to these proceedings:a. When asked about the status of his appeal in relation to the deposit order in this claim, the claimant indicated that he had not heard about it, when in fact it had been rejected and he then argued that he simply could not remember. I consider that he could remember, particularly as this was a relatively recent occurrence, and directly relevant to today’s proceedings;

b. The claimant had not provided any documentation to evidence his financial means. The claimant said that he did not realise he had to provide documentation to evidence his means and offered to obtain this in the break, however the claimant is very familiar with Tribunal proceedings and I consider that he would have been very familiar with the requirement for this. In this regard I note that the claimant appealed against the decision in claim 1403362/2020 (the Electus case) and the Employment Appeal Tribunal’s conclusions dated 31 May 2024 in relation to that claim included a comment that “it is far too late in the process to produce online sales evidence. There is no reason given as to why this was not available”. At this hearing before me one of the matters the claimant referred to was his sales figures and this was one of the matters he offered to produce further evidence on. Whilst this relates to a different case, it was about a costs hearing in which financial means were relevant and therefore the claimant must have known that such information would be relevant again today. He is also more generally fully aware of what is required from attending previous hearings in which financial means are relevant, both in relation to deposit orders and costs, including the hearing on this claim at which I issued the deposit order.

c. Also in relation to financial means, the information provided by the claimant in his email of 13 November 2024 which he asked to be taken as his witness evidence, makes no mention of the fact that the claimants owns a number of properties (albeit with mortgages). This is information which was relevant and discussed in relation to financial means at the deposit order hearing on 19 June and I consider that the claimant would have known that this would be Case No: 1306502/2020 13 relevant information but chose not to disclose until asked a direct question about it.

d. The claimant initially resisted the disclosure to the respondent of a sift document from the EAT (referred to at page 93), which stated that there were no remotely arguable grounds of appeal in relation to the Electus case. I consider that this was because it was helpful to the claimant and he hoped not to have to disclose it.

e. The claimant did not provide information to the respondent initially about what Tribunal proceedings clashed with the original hearing date for this costs application when applying for a postponement of the hearing.

f. Similarly, at the previous hearing the claimant considered withdrawing his claim purely to avoid having a written decision setting out why his claim was weak. Whilst I do not find this to be unreasonable conduct in itself, I do find that this generally supports the position that the claimant is concerned about other respondents or potential respondents seeing details of what has happened in his various claims that have been unsuccessful.

[49]I consider that that the claimant’s failure to disclose information when asked and his general evasiveness in providing information on these matters amounts to unreasonable conduct in the manner in which proceedings have been conducted, and I do not consider that the reason for the claimant’s conduct in this regard related to his autism, ADHD or dyspaxia, but rather to his desire to protect his position in these proceedings. I also consider that the fact that he is able to be selectively evasive in this way demonstrates that the claimant does have the ability to pause and reflect before taking action in relation to his claims, despite his autism, ADHD and dyspraxia. Practice of bringing claims generally and the way that he conducts himself in proceedings generally

[50]The respondent also relies on what it says is the claimant’s practice of applying for roles that he cannot do, then automatically bringing claims if his application is not progressed / adjustments are not made for him. The respondent says that the claimant has a general practice of using artificial intelligence to “wage warfare” on respondents.

[51]I was referred to several other Tribunal decisions, two of which have resulted in costs orders against the claimant of substantial sums.

[52]I was also referred to what was said to be the claimant’s practice of bombarding the respondent with emails, such as a number that were sent over the weekend prior to this hearing. The claimant said that this was because the file had to be finalised by Monday. Case No: 1306502/2020 14

[53]I was also referred to an email that the claimant had sent the night before this hearing, in which he referred to a “hobby”. The full sentence reads: “Christian Mallon - Monthly Budget, as its always wise to share my financial situation as i need a full-time job and this is why i apply all the time as my hobby as i have not had a full-time job since may 2019”

[54]The respondent says that this means that he considers bringing Employment Tribunal proceedings to be a hobby, and I agree that this is the natural meaning of what he has written. The claimant sought to clarify at the hearing that this was not what he meant and that in fact he meant that his ebay online sales was his “hobby” which he was trying to make money from in the absence of a full-time job. I note that during this hearing and previous hearings, he has consistently referred to the ebay endeavour as a hobby and so on balance of probabilities I accept what he has said on this point. I consider that the claimant mistakenly gave the impression that it was bringing Tribunal claims that he was referring to.

[55]That said, I do consider that he has a practice of following through into complaints and Tribunal proceedings without pausing to reflect on whether any particular claim has merits at an individual level. Having said that, focusing on this claim in particular, it was clear to me that the claimant did genuinely believe prior to 19 June 2024, because of what his artificial intelligence software told him, that he had arguments to put forward, and so I do not find unreasonable conduct specifically on this point in relation to this individual claim.

[56]I turn next to the claimant’s use of artificial intelligence, and sending large amounts of information in particular from artificial intelligence software to the respondent shortly before the hearing. Whilst I am mindful that I do not have specific medical evidence showing that this is something the claimant has a propensity to do because of his conditions, I do consider that is a relevant factor here. The claimant uses artificial intelligence because of his medical conditions to assist him to formulate his case and he considers it important to forward on the response he gets from the software to the respondent (and sometimes the Tribunal). In circumstances where the claimant does this because of his autism, ADHD and/or dyspraxia, I do not find unreasonable conduct in and of itself.

[57]However, I do now make it clear to Mr Mallon that it is not sufficient to simply search for a matter on artificial intelligence software, then forward on the answer without taking the time to digest it and consider whether it reflects what he wants to say or is relevant to his case. A number of the points he references in artificial intelligence driven communications in this case are not relevant, for example within emails about this case and this Case No: 1306502/2020 15 hearing he has referred to commentary on disability related absence cases and unfair dismissal, neither of which have any relevance. Artificial intelligence can be a useful tool, but it should not be used in isolation and I make clear to the claimant now that in future I would expect him, having been advised of this, to take the time to pause and read in detail what the artificial intelligence software has provided, refining and amending it as appropriate, before sending it on. I recognise that the claimant has slower processing time due to his conditions, however that does not prevent from processing the information if he takes the time to do so.

[58]As I do not know whether he has been told this before, I find no unreasonable conduct, but were the matter to be considered again, the position could be different now that the claimant has been specifically advised of that fact.

[59]One further matter to mention briefly in relation to artificial intelligence is that the claimant appears to have used it as the basis of an email to the respondent’s representative alleging breach of the SRA. Whilst an unusual and serious allegation to make, I do not consider that I have sufficient information to find that this was in itself unreasonable conduct. It may have been so and I do not suggest improper conduct at all on the respondent’s representative’s part, it is simply that I do not consider I have sufficient information before me today to determine the circumstances around this matter. The claimant’s conduct towards the respondent immediately after the deposit order was issued

[60]On the same day as the deposit order was issued in this case, the claimant contacted the respondent separately, resurrecting issues in relation to a job application he had made almost 5 months earlier. I conclude that the reason he did this was because he was angry at the respondent because he was unsuccessful at the deposit hearing. That has now led to separate employment tribunal proceedings.

[61]I make no finding in relation to the merits or otherwise of that claim, which will no doubt be subject to separate applications and hearings, however I do find the simple act of seeking retribution on the same day as the other hearing to be unreasonable conduct.

[62]The claimant commented at the end of this hearing (after I had awarded costs against him) that it was artificial intelligence that had helped him to identify that he had applied for a role five months earlier and it was at that stage that he realised that he had not chased that application. The claimant did not say this until after I gave my decision orally, however it would not change my decision in any case: I consider that the claimant’s rationale for Case No: 1306502/2020 16 pursuing the matter despite the time that had passed was influenced materially by the fact that he had failed to succeed in these current proceedings (I say “failed” because the claimant knew at that stage that he would not pay the deposit). I also urged the claimant to reflect upon whether he truly felt discriminated against because he was rejected for a role in circumstances where he says that he had not even remembered applying for that role. Is it appropriate to make an order that the claimant be required to pay some or all of the respondent’s costs, up to £20,000?

[63]Having determined that there has been unreasonable conduct (in relation to his approach to Tribunal litigation in these proceedings, failure to disclose information / selective evasiveness, and pursuing the respondent in relation to a separate job application from 5 months’ earlier once he was informed that he was subject to the deposit order in these proceedings), the next step is to consider whether it is appropriate to make an order for costs.

[64]The claimant had been sent a costs warning (page 48). I have concluded that a number of the aspects of the claimant’s conduct were unreasonable. I have taken into account his autism, ADHD and dyspraxia and consider that whilst this would have impacted him to some extent as explained above, his conduct was nevertheless unreasonable.

[65]I accept that the respondent has incurred substantial legal costs in defending the claim.

[66]I take into account that I have not found that the claim itself had no reasonable prospects of success and therefore I cannot say that the bringing of the claim in the first place was entirely misconceived.

[67]I conclude that the claimant’s conduct generally is not only unreasonable, but has no regard for the impact that it has on respondents (the \respondent’s representative has referred me to that impact in relation not only to his client but in relation to other claims which he says he has interacted with), but also on the Tribunal and Tribunal resources. The claimant’s approach to Tribunal proceedings drives up costs, and fails to take account of the individual circumstances of the given case. This is a crucial area that he is urged to consider moving forward.

[68]The purpose of a costs order is compensatory not punitive. Whilst the filing of the claim is not in itself unreasonable conduct, I do consider that the respondent has incurred additional costs because of the unreasonable conduct and that it is reasonable for the respondent to be compensated for that. Case No: 1306502/2020 17 The amount of the costs order

[69]There is no requirement to identify with any particularity a causal link between the unreasonable conduct and the amount of costs ordered. However, I take into account a substantial amount of costs would inevitably have been incurred in any case.

[70]The key areas where I have found unreasonable conduct both relate to the claimant’s approach to proceedings since 19 June 2024.

[71]I have considered his ability to pay and the information provided by the claimant both in oral evidence and in his email of 13 November. He has recently moved house from a house which he owns jointly with his ex-partner to a house which he now rents. He still half-owns the other house, but has a mortgage on it. He also owns three other properties, none of which are high value, all of which have mortgages and in respect of which one is due to be sold imminently with the proceeds being used to fund other costs orders and other debts. In respect of the rental properties he has, I accept that there are costs associated with repairs and rates on these and therefore he does not receive in real terms the full value of the rent (and if substantial repairs are needed as they were recently on his Belfast property then he may make a loss in a particular month).

[72]Overall, whilst I accept that he has a number of outgoings, he also has considerable value wrapped up in these properties and has been able to sell one in order to fund other costs awards. I also recognise that he is an intelligent man and the roles he applies for are relatively well paid. The fact that he lacks the ability to pay now would not mean that he would lack the ability to pay in future. For the avoidance of doubt, I do not in any case find that lacks the ability to pay now bearing in mind his assets.

[73]I consider that costs should be limited to those incurred from after the hearing on 19 June 2024. I also consider that it should not be 100% of those costs that are recoverable as there would have been continued limited work on the file in any case.

[74]The total expenditure since the hearing appears to be just under £3,500 to 7 October 2024. I accept there has been some additional cost since then as well.

[75]Taking all of the above into account, I order that the claimant be liable for the respondent’s costs to the sum of £2,500. No VAT is due on this sum. Employment Judge Edmonds Date: 25 November 2024 Case No: 1306502/2020 EMPLOYMENT TRIBUNALS Claimant: Mr C Mallon Respondent: Energy Systems Catapult Limited

Conclusions

[1]There is no reasonable prospect of the original decision being varied or revoked, for the reasons set out below.

[2]Rule 70 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”) provides that: A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.

[3]The process for reconsideration is set out at Rule 70 of the ET Rules, and provides that:(1) An Employment Judge shall consider any application made under Rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to Case No: 1306502/2020 the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s personal views on the application.

(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.

(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.

[4]In considering whether to grant the reconsideration, the Tribunal should have regard to the interests of both parties, along with the public interest in the finality of litigation (Outasight VB Limited v Brown 2015 ICR D11 EAT).

[5]The claimant applied for reconsideration by email dated 26 November 2024, which listed a number of grounds on which reconsideration was sought, along with a list of case authorities. This was then supplemented by a further email dated 28 November 2024. I go through the points raised by the claimant in turn below.

[6]Unreasonable conduct and lack of reasonable adjustments: whilst the claimant submits that the Tribunal did not adequately consider his disabilities and the impact on his actions, this was in fact considered extensively and referred to in both the oral and written reasons.

[7]Vexatious conduct. As explained in the written reasons, the reasons focused on unreasonable conduct because this was the focus placed by the respondent’s representative in their application. For the avoidance of doubt, the Tribunal has not made any specific findings of vexatious conduct, only unreasonable conduct, but has nevertheless concluded that a costs award is appropriate. There was no overlap in the threshold tests as alleged and the costs order issued related to unreasonable conduct.

[8]Costs Warning. The claimant says that the Judgment does not provide details on whether the costs warning issued met the requirements of Rule 77 of the ET Rules. Rule 77 of the ET Rules does not set out any requirements for a costs warning, but only for an application for a costs order. No issue was raised by the claimant as to whether the requirements of Rule 77 in relation to the application for a costs order were complied with. For the avoidance of Case No: 1306502/2020 doubt, Rule 77 provides that a party may apply for a costs order at any stage “up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties”. At the point the costs application was made there was no judgment finally determining the proceedings, only a deposit order, and therefore the 28 days had not yet started to run. In addition, it is clear that the claimant had a reasonable opportunity to make representations in response to the application. In relation to the costs warning itself, this is specifically covered in the written reasons.

[9]Overlapping threshold tests. There has been no blurring of the lines between “no reasonable prospects of success” and “unreasonable conduct”. These matters are addressed separately.

[10]The amount of costs. The reasons explained the basis for the amount of costs and the period in respect of which that related to.

[11]Ability to pay. This was specifically considered and set out in the Reasons, which acknowledged the mortgages attached to some of the properties.

[12]Selective interpretation of conduct. The Tribunal specifically referenced the claimant’s autism, ADHD and dyslexia and the impact this can have on processing in reaching its decision.

[13]Conclusion. The grounds which have been raised by the claimant, along with the various case law quoted (to the extent relevant to the matter being determined) do not raise any points which were not already addressed and considered at the costs hearing on 14 November 2024. I do not consider that it is in the interests of justice to reconsider this decision. Whilst I acknowledge that costs are the exception and not the rule, in the circumstances of this case I do not consider that any points have been raised which would change the decision to make an award of costs. The original decision is confirmed.