A v Royal Devon University Healthcare NHS Foundation Trust: 1403075/2022

EMPLOYMENT TRIBUNALS

Case No 1403075/2022

Between

AClaimant

Royal Devon University Healthcare NHS Foundation TrustRespondent

Before

Employment Judge H Lumby

In person for claimant

S Wyeth (instructed by counsel) for respondent

Ashfords LLP for respondent

Date 17 November 2023

JUDGMENT

The unanimous judgment of the tribunal is that(a) the claimant was not unfairly dismissed and her claims for unfair dismissal are dismissed and

(b) the claimant’s claims for discrimination are also all dismissed

REASONS

[1]In this case the respondent seeks its costs of defending this action against the claimant. I have received submissions on behalf of the respective parties. Neither party requested a hearing to make further submissions having been invited to do so. I have made this determination on the papers based on their submissions.

[2]The claimant brought claims to the tribunal for unfair dismissal and discrimination. The claims were heard via CVP from 13 to 17 November 2023. All the claims were dismissed. Findings of Fact Relevant to the Costs Application

[3]The claimant was a litigant in person and did not have the benefit of legal advice in relation to her claims. Case No. 1403075/2022 2

[4]The claimant had a genuine belief in the merits of her claim and that she had a reasonable case. It was clear to the tribunal that she suffered from illhealth. She believed as a result that she was at high risk during covid and that the respondent did not treat her concerns with the seriousness that she considered appropriate.

[5]Whilst the tribunal found in the respondent’s favour, it did not consider the claimant’s case was wholly without merit and that the claimant did not act unreasonably in bringing the claim. The tribunal does not find that the case had no reasonable prospect of success.

[6]It found that the claimant has a combative style. This was displayed both in the period the subject of the case and during the hearing itself. In addition, the claimant redacted some personal Whatsapps, arguing that the redacted sections were not relevant to the proceedings. These were subsequently disclosed in unredacted form and found to be relevant. However, neither her behaviour or the redaction of the Whatsapps amounted to an unreasonable conduct of the proceedings nor did she act vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings or the way that the proceedings were conducted.

[7]The tribunal also finds that in the without prejudice discussions disclosed by the respondent as part of this application, these were initiated by the claimant in a bona fide attempt to settle the case. These are referred to below. The Application for Costs

[8]The respondent makes an application for its costs on the basis that the claimant has acted unreasonably in the way in which the proceedings have been brought and conducted. The amount claimed is £26,924 plus VAT for the respondent’s solicitors fees and £14,250 plus VAT for counsel’s fees.

[9]The respondent application is based on a costs warning made to the claimant on 6 June 2023. It submits that the claimant acting unreasonably in bringing and pursuing her claims, which were dismissed in their entirety and accordingly significant costs have been incurred that necessitate the use of public funds.

[10]The respondent in its application sets out details of settlement discussions pursued between the parties. These began with an initial settlement offer of £25,000 from the claimant on 25 April 2023 followed by a counteroffer of £2,500 from the respondent on 6 June 2023. That counteroffer was accompanied by a costs warning to the claimant that if her claim was unsuccessful, the respondent would be making an application for a costs Case No. 1403075/2022 3 order against her. The offer was rejected by the claimant without any further offer being made.

[11]The respondent was then contacted on 16 October 2023 by ACAS, saying that the claimant would consider an increased offer. The respondent replied with an increased offer of £3,000 on 1 November 2023, to which the claimant offered to settle at £15,000. A final offer of £5,000 was offered by the respondent but rejected. As the claimant would not accept a lower figure than £15,000, negotiations ceased.

[12]The respondent therefore claims that a costs order is appropriate given that the claimant was put on notice that an application would be pursued by the respondent and in light of the significant public expense incurred in defending the claim.

[13]The claimant resists the application, arguing that it was brought in the belief that she had a substantial case, that her employment rights had been abused and her mental health affected whilst in the respondent’s employment. She made the application in honesty and good faith and acquiesced to all orders given as the hearing progressed, whilst facing what she perceived as harassment and intimidation by the respondent.

[14]The claimant points out that the settlement discussions were commenced by her at what she considers to be a realistic level given her schedule of loss. She considers the response from the respondent was inappropriate by offering only a time limited final offer rather than engaging in a proper negotiation.

[15]She similarly points out that the final negotiations undertaken shortly before the hearing were initiated by her and again set at a level which she considered to be realistic. She believes that she brought her application with a reasonable prospect of success and it was the respondent who was criticised for unreasonable behaviour at the preliminary hearing. The Rules

[16]The relevant rules are the Employment Tribunals Rules of Procedure 2013 (“the Rules”).

[17]Rule 76(1) provides: "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. Case No. 1403075/2022 4

[18]Under Rule 76(2) 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.

[19]Under Rule 77 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.

[20]Under Rule 78(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) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles …"

[21]Under Rule 84, 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. The Relevant Case Law

[22]I have considered the following cases: Gee v Shell Ltd [2003]

[2003] IRLR 82

CA; McPherson v BNP Paribas

[2004] ICR 1398

CA; Monaghan v Close Thornton [2002]

EAT/0003/01

; Brooks v Nottingham University Hospitals NHS Trust [2019] WLUK 271,

UKEAT/0246/18

; NPower Yorkshire Ltd v Daley

EAT/0842/04

; AQ Ltd v Holden

[2012] IRLR 648

EAT; Kapoor v Governing Body of Barnhill Community High School

UKEAT/0352/13

; Vaughan v LB of Newham

[2013] IRLR 713

; Growcott v Glaze Auto Ltd

UKEAT/0419/11/SM

. The Relevant Legal Principles

[23]The correct starting position is that an award of costs is the exception rather than the rule. As Sedley LJ stated at para 35 of his judgment in Gee v Shell Ltd “It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to people without the need of lawyers, and that in sharp distinction from ordinary litigation in the UK, losing does not ordinarily mean paying the other side’s costs …” Nonetheless, an Employment Tribunal must consider, after the claims were brought, whether Case No. 1403075/2022 5 they were properly pursued, see for instance NPower Yorkshire Ltd v Daley. If not, then that may amount to unreasonable conduct. In addition, the Employment Tribunal has a wide discretion where an application for costs is made under Rule 76(1)(a). As per Mummery LJ at para 41 in Barnsley BC v Yerrakalva “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.” However, the Tribunal should look at the matter in the round rather than dissecting various parts of the claim and the costs application and compartmentalising it. There is no need for the tribunal to find a causative link between the costs incurred by the party making the application for costs and the event or events that are found to be unreasonable, see McPherson v BNP Paribas, and also Kapoor v Governing Body of Barnhill Community High School in which Singh J held that the receiving party does not have to prove that any specific unreasonable conduct by the paying party caused any particular costs to be incurred.

[24]When considering an application for costs the Tribunal should have regard to the two-stage process outlined in Monaghan v Close Thornton by Lindsay J at paragraph 22: "Is the cost threshold triggered, e.g. was the conduct of the party against whom costs is sought unreasonable? And if so, ought the Tribunal to exercise its discretion in favour of the receiving party, having regard to all the circumstances?”

[25]In Brooks v Nottingham University Hospitals NHS Trust the EAT confirmed that dealing with an application for costs requires a two-stage process. The first is whether in all the circumstances the claimant has conducted the proceedings unreasonably. If so, the second stage is to ask whether the tribunal should exercise its discretion in favour of the claiming party, having regard to all the circumstances. In the case of reasonable prospects of success, the first stage is whether that ground is made out, and if it is, then to apply the exercise of discretion as to whether or not to award costs.

[26]The threshold to trigger costs is the same whether a litigant is or is not professionally represented, although in applying those tests, the EAT has held that the status of a litigant is a matter which the tribunal must take into account – see AQ Ltd v Holden in which Richardson J commented: “Justice requires the tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. As [counsel] submitted, lay people are likely to lack the objectivity and knowledge of law and practice brought about by a professional adviser. Tribunals must bear this in mind when assessing the threshold tests in [rule 76(1)(a)]. Further, even if the threshold tests for an order of costs are met, the tribunal has discretion whether to make an order. This discretion will be Case No. 1403075/2022 6 exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice.” However, Richardson J also acknowledged that it does not follow from this “that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity”. These statements were approved by Underhill P in Vaughan v London Borough of Newham.

[27]The EAT held in Growcott v Glaze Auto Ltd

UKEAT/0419/11/SM

that costs can be awarded if a reasonable offer is made to settle and a hopeless case is still pursued.

Conclusion

[28]I have applied these principles to the facts of the case as referred to above. Applying the two stage test in Monaghan v Close Thornton, the first question I have considered is whether the claimant’s conduct was unreasonable.

[29]The tribunal has found that she was not unreasonable in bringing the claim. She considered she had a reasonable case. The respondent has argued that the case had no reasonable prospect of success but the tribunal has found that this is not the case.

[30]Following the principles outlined in Barnsley BC v Yerrakalva, the tribunal has considered the question of the claimant’s conduct of the case in the round. Although her style was combative and she made a mistake in redacting Whatsapps that should have been disclosed, the tribunal has found that her conduct was not so abusive or unreasonable as to cross the threshold as to engage Rule 76(1) and so trigger a liability for cost.

[31]The tribunal next considered whether the circumstances of the without prejudice discussions themselves were sufficient to amount to unreasonable conduct. It is noted that the discussions were initiated by the claimant on each occasion. The question is however whether she acted unreasonably in rejecting the final offer from the respondent, even though she knew that the respondent would seek a costs order if she persisted with the case and was unsuccessful.

[32]Following AQ Ltd v Holden, it is not appropriate to hold a lay person to the same standards as one who is professionally advised. The claimant believed in the reasonableness of her case and that she was justified in rejecting an offer that she considered too low. The tribunal also considers that the respondent’s offer coupled with a costs warning was intended to intimidate the claimant into accepting a low offer rather than seeking a bona fide settlement. It is a credit to the claimant that she was not intimidated by Case No. 1403075/2022 7 this and persisted with the case. In this, the fact that the respondent had previously made what was expressed to be a final offer and then raised it might have given the claimant hope that standing firm might elicit a higher offer.

[33]Accordingly, the tribunal does not find that the claimant acted unreasonably in rejecting the final offer and proceeding with the case, notwithstanding the costs warning. As a result, the respondent’s cost application is dismissed.