Employment Judge G. KingIn person for claimantMs E. Skinner for respondentDate 29 April 2024
JUDGMENT
[1]The Claimant’s claim is not well founded and is dismissed.[1]The Claimant’s application to postpone the hearing is refused.[2]The Respondent’s application for a cost order is granted. The Claimant shall pay the Respondent the sum of £19,036.80 (nineteen thousand and thirty six pounds, eighty pence)
REASONS
[1]By a claim form dated 256 April 2023, the Claimant brought claims for breach of contract, unlawful deduction of wages under s.13 ERA 1996, and breaches of Human Rights Act article 6 parts 1 and 3. The deductions the Claimant sought to challenge were deductions the Respondent was required to make pursuant to Deduction from Earnings Orders (“DEO”s) issued by the Child Maintenance Service (“CMS”).[2]In the Judgment given on 1 September 2023, the Tribunal found:a. The Employment Tribunal was not able to decide whether or not a DEO was "defective", as this should be a claim brought in the Magistrates’ Court;b. In any event, the Judge had seen no evidence that all DEO's made against the Claimant were "defective" as alleged – it could only see one order from a Magistrates’ Court which confirmed this, which was limited to one DEO from 2019 only. The original DEO this related to was not provided, nor did the order contain the reasons as to why this was defective;c. The Employment Tribunal could not consider any breach of contract claim, as the Claimant remained an employee of the Respondent; and;d. That the Respondent was legally obligated to make the deductions as it had done so to date and there had therefore no unlawful deductions from the Claimant's wages.[3]Following the oral Judgment, the Respondent made an application for a Costs Order under Rule 75 and 76 of the Employment Tribunal Rules of procedure 2013, dated 29 September 2023. Claimant’s application to postpone the hearing[4]By an email dated 9 April 2024, the Claimant made an application to postpone the hearing. The ground the Claimant relied upon were:a. He was not able to receive any emails since the 29th March due to being away;b. He was not aware the Respondent had made a request to submit late information and therefore was not able to challenge this;c. The Respondent had submitted substantial amounts of information on 8 April 2024 that he had only just been able to access. The Claimant said he now had a very short period of time to view and respond to this information and due to the Respondent’s late submission, and this places him at a severe disadvantage.[5]The Respondent opposed the application. The Respondent referred the Tribunal to Rule 30A of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, since the Claimant’s application has been made within seven days of the hearing: 30A.—(1) An application by a party for the postponement of a hearing shall be presented to the Tribunal and communicated to the other parties as soon as possible after the need for a postponement becomes known. (2) Where a party makes an application for a postponement of a hearing less than 7 days before the date on which the hearing begins, the Tribunal may only order the postponement where— (a)all other parties consent to the postponement and— (i)it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement; or (ii)it is otherwise in accordance with the overriding objective; (b)the application was necessitated by an act or omission of another party or the Tribunal; or (c)there are exceptional circumstances.[6]The Respondent said it did not consent to the application, nor were there exceptional circumstances. The only possible route for granting the Claimant application was under (b).[7]Respondent accepted that the Respondent skeleton argument was served later than the seven days before the hearing, as had been ordered by the Tribunal. The Respondent’s argument, however, was that the written skeleton argument does no more than repeat the arguments that were set out in the Respondent’s costs application dated 29 September 2023. The Respondent says the Claimant was fully aware of these arguments, and indeed responded to them on 16 October 2023. The Respondent therefore argued that the Claimant’s application was not necessitated by an act or omission of the Respondent.[8]The Respondent further argued that the Claimant was aware of this hearing since 26 February, and if he wished to be away and without email communication immediately prior to this hearing that was up to him, but should not be grounds for him to request the hearing be postponed. Respondent also said that the majority of the documents that have been sent to the Claimant were authorities in relation to case law, which the Respondent had a duty to bring to the Tribunal’s attention. They were provided to assist the Tribunal, and it was not expected that the Claimant, as a litigant in person, should have an in-depth knowledge of the case law.[9]The Claimant stated that he did sporadically check his emails whilst he was away, but stated there was no requirement for him to be available 24 hours a day, seven days a week.[10]The Tribunal considered the Claimant’s application and was of the view that the arguments in the Respondent’s skeleton argument are no different to those in the Respondent’s application for a costs order dated 29 September 2023. The arguments involve matters which the Claimant is aware of and has responded to.[11]The Tribunal was of the view that this is not a legally complicated argument. The question is whether the Claimant acted unreasonably or not. Written submissions were optional, and format of the hearing is still for the Respondent to make the application orally, and then the Claimant will have a chance to respond.[12]The Tribunal considered the Overriding Objective and found that the parties were not on an unequal footing so as to render the hearing unfair. The Tribunal also considered the Overriding Objective in terms of delay and efficient use of court time, and concluded it was not in the interests of justice to postpone the hearing. It was possible for a fair hearing to take place today. The Respondent’s Costs Application[13]The Respondent makes the application under the following grounds:a. The claim had no reasonable prospects of success – Rule 76(1)(b);b. The Claimant acted unreasonably – Rule 76(1)(a) - by bringing his claim;c. The Claimant acted unreasonably – Rule 76(1)(a) - by bringing his claim continuing with his claim after the Respondent’s costs warning letter dated 21 July 2023;d. The Claimant acted unreasonably – Rule 76(1)(a) - by bringing his claim the manner in which he conducted proceedings, in that he: i. requested all correspondence by recorded delivery; ii. blocked the Respondent’s solicitors’ emails; iii. failed to communicate with the Respondent’s solicitors regarding the calculation of the value of his claim, and regarding the attendee chart for the hearing; iv. disclosed a key document late; v. applied to postpone the final hearing 11 days beforehand without good reason; vi. failed to copy the Respondent’s solicitors into his postpone application despite being asked.
Relevant Law
[14]Rule 75 of the Employment Tribunal Rules of Procedure 2013 sets out the definition of a preparation time order: -(1) …(2) A preparation time order is an order that a party ('the paying party') make a payment to another party ('the receiving party') in respect of the receiving party's preparation time while not legally represented. 'Preparation time' means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing.(3) A Costs Order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings. A Tribunal may, if it wishes, decide in the course of the proceedings that a party is entitled to one order or the other but defer until a later stage in the proceedings deciding which kind of order to make.[15]Rule 76 sets out the test to be applied by the Tribunal in considering whether to grant a costs application: - (4) 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;(b) any claim or response had no reasonable prospect of success; [or (e) 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.] (5) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. …[16]Rule 77 sets out the procedure for determining such applications: - A party may apply for a Costs Order or a preparation time 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. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.[17]The principle in the Rules is that “costs” (the Tribunal will use this term as shorthand for both costs and preparation time) do not follow success as they do in other areas of civil litigation. Rather, the Tribunal has power to make awards of costs in the circumstances set out in the Rules. In this case, the relevant provision is Rule 76(1)(a) which gives the Tribunal a discretion to award costs of the conduct of a party meets the threshold test set out in the Rule.[18]The Tribunal’s discretion to award costs is not fettered by any requirement to link any unreasonable conduct to the costs incurred (McPherson v BNP Paribas (London Branch) [2004] ICR 1398 and Salinas v Bear Stearns International Holdings Inc [2005] ICR 1117, EAT). However, that is not to say that any issue of causation is to be ignored and the Tribunal must have regard to the “nature, gravity and effect” of any unreasonable conduct (Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78).[19]The Tribunal takes into account that the “no reasonable prospect of success” provision is not the same as that when assessing whether a claim should be struck out or not. In those cases, the Tribunal as not heard full evidence, and so the test for strike out is a high bar. In assessing whether or not a claim has no reasonable prospect of success when considering an argument for costs the Tribunal has the benefit of having heard all the evidence in relation to the Claimant’s claims and the Respondent’s response to those claims. Deliberation[20]In this Judgment in respect of the application for a Costs Order, the Tribunal does not intend to repeat the full reasons for the liability Judgment. The reasons were given orally on 1 September 2023 and there has been no request for written reasons.[21]It was found at the final hearing that the Tribunal had no jurisdiction to hear the allegation of breach of contract because the Claimant was still employed. This is because Section 3(2) of the Employment Tribunals Act 1996 together with Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 limit the Tribunal’s jurisdiction in respect of allegations of breach of contract to claims which arise or are outstanding on termination of employment.[22]The Claimant would have known he was still employed at the time of bringing his claim. The Tribunal is satisfied that the Claimant’s claim for breach of contract had no reasonable prospect of success.[23]The argument under the Human Rights Act article 6 were not relevant to the Claimant’s claim. Subsection 3 relates to criminal offences, and therefore is not relevant. Subsection 1 relates to a fair trial, and the Claimant was not deprived of this right. These were not claims that the Employment Tribunal could hear, and according had no prospect of success.[24]It was the judgement of the Employment Tribunal at the final hearing that the employment Tribunal is not the forum to challenge a DEO. The Claimant was aware of this, as he had appealed against DEOs previously, and had been sent a letter [69] explaining that appeals in relation to DEOs are heard at the Magistrates’ Court.[25]The Claimant claim of unlawful deduction from wages at the substantive hearing was based, at least in part, on an argument that the DEO was defective, but the only evidence the Claimant supplied was from 2019 and related to a different DEO. Even if the employment Tribunal had been the appropriate venue to challenge the DEO, it should have been obvious that the Tribunal would not do so on the strength of a previous decision relating to a completely different DEO. The Tribunal is satisfied that the Claimant’s claim of unlawful deductions from wages had no reasonable prospect of success.[26]The Tribunal is not satisfied that the Respondent arguments regarding the Respondent being a charity, and the value of the Claimant’s claim being only £263.40 mean that the Claimant was unreasonable in bringing his claim. The activities and status of the Respondent is not relevant, and Claimant are entitled to bring claims or even relatively small amounts.[27]The Tribunal is, however, satisfied that the Claimant was unreasonable in continuing with his claim after the Respondent’s costs warning letter of 21 July 2023 [15 – 17]. The Tribunal agrees with the Respondent that the letter set out in very clear terms why the Claimant’s claim was bound to fail. At the final hearing, the Claimant’s claim was dismissed for the very reasons that the Claimant had been warned about. The letter also set out the Respondent likely costs, being £8,000 to £12,000 plus VAT. The Claimant chose to continue with his claim despite this, and the Tribunal finds that it was unreasonable of him to do so.[28]The Respondent also contends that the way in which the Claimant conducted himself during the course of the claim amount to unreasonable conduct. The Respondent says that the Claimant told the Respondent’s solicitors that all communication be sent by recorded delivery. The Respondent further says that the Claimant blocked the Respondent solicitors email address and at times telephone number from contacting him.[29]The Claimant says that he asked for normal mail due to the volume of email he was receiving from the Respondent’s solicitors, and the Respondent solicitors’ expectation of instantaneous replies. There is, however, no evidence to suggest that the Respondent’s solicitors required the Claimant to reply to emails immediately, and the Tribunal considers this to be unlikely. The Claimant further says that he did not block the Respondent’s solicitors, but says it was the Respondent’s email that he blocked. The Claimant also explained to the Tribunal that he suggested signed for post but did not demand it.[30]The Claimant’s version of events is not supported by the contemporary documents. The Claimant’s email of 21 July 2023 [20] says: “I have been given advice not to accept any further correspondence from yourselves via email. All correspondence must now be sent via a signed for method of postal delivery. No further email correspondence will be entered into on this or any other matter.”[31]The Tribunal finds that this is not a suggestion, but a demand. It is also an unreasonable demand as it put the Respondent to considerable extra cost in terms of printing and postage. The Tribunal also accepts that the email at page [27] of the bundle does show that the Claimant blocked the Respondent’s solicitors’ email address. The email was sent from the Respondent’s solicitors’ email address to the Claimant, and the automatic reply says: “The domain your email has originated from has been blocked by the recipient. Your email has not been delivered and has been automatically deleted.”[32]The Tribunal is satisfied that this shows that the Claimant did block the Respondent solicitors email domain, and this was unreasonable of him as it prevented the parties from being able to effectively work together to assist the Tribunal.[33]The Claimant failed to provide a Schedule of Loss, in breach of the Tribunal’s order. Despite reminders from the Respondent’s solicitors on 31 July 2023 [28], 4 August 2023 [31], and 10 August 2023 [35]. This led to the Respondent making an urgent application for an unless order on 14 August 2023 [36-37] and sending further requests for the Schedule of Loss on 16 August 2023 [38], and 21 August 2023 [40]. On 30 August 2023, only two days before the hearing, the Claimant emailed Blake Morgan and the Tribunal stating that “the current outstanding amount claimed for is currently £263.40p”. The Claimant did not explain how he had arrived at this figure. The Tribunal finds that the Claimant was in breach of the Tribunal’s order and has not provided any reason or explanation as to why. The Tribunal is satisfied this is further unreasonable conduct on behalf of the Claimant.[34]The Tribunal finds that the Claimant failed to communicate with the Respondent’s solicitors regarding the attendee chart, despite the Respondent’s solicitors contacting him about it on 28 July 2023 [24-26], and 4 August 2023 [31]. This forced the Respondent’s solicitors to submit an incomplete version to the Tribunal [32]. The Claimant failed to communicate with the Respondent’s solicitors regarding the hearing bundle, despite the Respondent’s solicitors explaining on 31 July 2023 that he would need to review it and provide any additional documents [28], providing a draft copy on 4 August 2023 and requesting comments and any additional documents by 14 August 2023 [31], sending another copy and re-sending its 4 August letter on 10 August 2023 [35], and sending the Claimant a final copy on 16 August 2023 [38]. This was unreasonable as it forced the Respondent to finalise the hearing bundle without the Claimant’s input.[35]Two days before the final hearing, the Claimant disclosed what he considered was the key document on which he relied at the hearing. As a result, this had to be referred to at the hearing as a separate document. This impacted the smooth running of the hearing and meant that all the Respondent’s solicitors efforts to agree the hearing bundle had been in vain.[36]The Tribunal is satisfied that the Respondent’s solicitors asked the Claimant several times [28], [31], [35], [38] if he had any relevant documents to disclose to be added to the bundle. The Claimant, however, failed to disclose the main document he relied on (the 2019 Magistrates’ Court judgment [66]) until 30 August 2023, two-days before the hearing. The Tribunal finds this to be further unreasonable conduct, as this impacted the Respondent’s ability to prepare for trial, as well as causing problems with the smooth running of the hearing.[37]On 21 August 2023, 11 days before the hearing date, Claimant applied to postpone the final hearing. The Respondent objected to the application for all the reasons set out in its email to the Tribunal dated 25 August 2023 [44- 45]. Employment Judge Roper refused the application on 29 August 2023.[38]The Claimant failed to copy Blake Morgan into his application to postpone [45], forcing the Respondent to request a copy from the Tribunal directly [43]. This led to the Respondent not receiving a copy until 7 days before the final hearing [6]. Blake Morgan had already explained to the Claimant in the costs warning letter that he should copy them into any correspondence he sent to the Tribunal [16]. The Claimant, despite knowing that the Respondent had appointed solicitors to act for it, refused to send documents to the Respondent’s solicitors and instead sent correspondence to the Respondent directly. The Claimant spent more time on emails objecting to sending documents to the Respondent’s solicitors [165 – 175] than it would have taken to forward the documents. The Tribunal is satisfied that this amounts to unreasonable conduct.[39]The Claimant has shown no reasonable basis for conducting the proceedings in the way he did, which forced the Respondent to incur yet further unreasonable costs. The Tribunal is mindful that Claimant must not be judged against the standard of a professional representative, however, it should have been clear to him even as a litigant in person from the outset that his claim had no reasonable prospects of success. He also had the benefit of an entirely reasonable, and very clear costs warning letter, which he unreasonably chose to disregard.[40]The Tribunal is satisfied that it is appropriate to make a costs order in the circumstances. The Tribunal considered the Claimant’s means and took note of the fact that he is in employment and has some equity in a property. The Tribunal also took into account that the Tribunal should only award costs that have been reasonably and necessarily incurred by the Respondent. The Tribunal is satisfied, given the findings above, that the whole of the Respondent costs were reasonably and necessarily incurred in defending the unmeritorious claim.[41]The Tribunal therefore orders that the Claimant shall pay the Respondent all costs in the sum of £19,036.80 (nineteen thousand and thirty six pounds, eighty pence).