N Twitchen v Genu Prima Ltd T/a First Grade Projects and J Morgan: 1601455/2023

EMPLOYMENT TRIBUNALS

Case No 1601455/2023

Between

N TwitchenClaimant

Genu Prima Ltd T/a First Grade Projects and J MorganRespondent

Before

Employment Judge Havard

Ms A Arya (instructed by Counsel) for claimant

No appearance for respondent

Date 30 May 2024

JUDGMENT

[1]the claim of automatic unfair dismissal on the grounds of pregnancy as against the First Respondent is well-founded and succeeds;

[2]the claim as against the First Respondent for failing to provide written reasons for the Claimant's dismissal is well-founded and succeeds;

[3]the claim of pregnancy discrimination as against the First and Second Respondent is well-founded and succeeds.

[4]the Respondents must pay to the Claimant compensation in the total sum of £28,706.76. This amount is made up of the following:(i) Compensation in respect of unfair dismissal, payable by the £11,626.20 First Respondent:

(ii) Failure to provide written reasons for dismissal, payable by £521.00 the First Respondent: Case Number: 1601455/2023

(iii) Injury to feelings, payable by the First and Second £15,000.00 Respondent:

(iv) Interest on award for automatic unfair dismissal and failure £625.66 to provide written reasons for dismissal, payable by the First Respondent:

(v) Interest on award for injury to feelings, payable by the First £933.90 and Second Respondent: JUDGMENT having been sent to the parties on 3 June 2024 and reasons having been requested by the Respondents in accordance with Rule 62(3) of the Rules of Procedure 2013:

REASONS

[1]By a claim form dated 25 July 2023 the Claimant pursues claims arising from the following complaints, automatic unfair dismissal, discrimination due to pregnancy and no written statement of dismissal. The Claimant was present and represented by Ms Arya of Counsel. There was no appearance by, or on behalf of, the Respondent. Mr Nigel Henry, Litigation Consultant, of Croner is on the record as acting for the Respondent.

[2]For the purposes of this decision there is no requirement to set out in detail the chronology of events but, suffice to say, due to the Respondent's noncompliance with various directions made at earlier Case Management Hearings on 15 November 2023 and 29 February 2024, Mr Henry having appeared on behalf of the Respondent on both occasions, the Respondent's response was dismissed and an application to set aside that decision was also dismissed. More particularly, this case was originally listed to be hearing on 18 March 2024. However, at the Case Management Hearing on 29 February 2024, which was arranged at short notice due to non-compliance with directions at the Case Management Hearing on 15 November 2023, it was decided by Employment Judge Ward to vacate the hearing in March 2024. EJ Ward says the following at paragraph 8 of her Order, “for these reasons I postpone the hearing on 18 March 2024 and re-list it with dates agreed with the parties on 29, 30 and 31 May 2024. A revised Notice of Hearing will follow.”

[3]However, on 27 March 2024, some 4 weeks after the hearing dates in May 2024 had been agreed by Mr Henry on behalf of the Respondent, he sent an email to the Tribunal stating that the Second Respondent, “has been booked on a holiday from 27 May 2024 returning 3 June, proof of booking is to follow”.

[4]On 26 April 2024, and so a further 4 weeks after Mr Henry’s email of 27 March 2024 requesting an adjournment and 8 weeks after agreeing the dates in May at the Case Management Hearing on 29 February 2024, Regional Employment Judge Davies directed that the Respondents application for an adjournment was refused. This was because, despite having had at least 4 weeks to do so, the Respondent had not provided proof of the holiday booking, something Mr Henry offered to provide in his email of 27 March 2024.

[5]The reason for going into some detail about this issue is because, on the morning of 29 May 2024, when it became apparent that, without any prior explanation, there was no-one present from the Respondents or anyone on their behalf, the Tribunal telephoned and spoke with Mr Henry. He informed the Tribunal that the Respondents intended to appeal against the decision of Regional Employment Judge Davies refusing their application for an adjournment, and had therefore decided not to attend. Neither the Tribunal nor the Claimant’s representative had been provided with any prior notice of their intention to appeal which is even more surprising as there have been exchanges of emails since the decision of Regional Employment Judge Davies was communicated to the parties on 26 April 2024, to include an application by the Respondents dated 3 May 2024 for the Tribunal to set aside the decision to dismiss the Response. As stated, that application was subsequently refused by a decision dated 14 May 2024.

[6]In the circumstances the Tribunal considered that it was appropriate to proceed with the hearing in the absence of the Respondents. Documents

[7]In the absence of anything from the Respondents, the Tribunal had been provided with a bundle prepared by the Claimant running to 163 pages together with an index running to 3 pages. Witness statements

[8]The Tribunal had read a 4 page statement provided by the Claimant who also gave oral evidence to the Tribunal. Submissions

[9]The Tribunal listened to submissions made by Ms Arya on behalf of the Claimant.

Issues

[10]At the Case Management Hearing on 15 November 2023, a List of Issues for the Tribunal to determine was discussed. In the Order, it stipulates that the List of Issues are included in the Case Summary and that if either party considered the List was wrong or incomplete they must write to the Tribunal and the other side by 30 November 2023; neither party did write by that date to question the relevance and accuracy of the Issues.

[11]The Issues relevant to liability are as follows: 1. Employment status 1.1 It is accepted that the Claimant was employed by the First Respondent from 13 October 2021 until 18 April 2023. 2. Time limits2.1 Given the date the claim form was presented and the dates of Early Conciliation, any complaint about something that happened before 28 March 2023 may not have been brought in time

2.2 Were the discrimination complaints made within the time limit in Section 123 of the Equality Act 2010? The Tribunal will decide:2.2.1 Was the claim made to the Tribunal within 3 months plus Early Conciliation extension of the act to which the complaint relates?

2.2.2 If not, was there conduct extending over a period?

2.2.3 If so, was the claim made to the Tribunal within 3 months (plus Early Conciliation extension) of the end of that period?

2.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable. The Tribunal will decide2.2.4.1 Why were the complaints not made to the Tribunal in time?

2.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

2.3 Was the unfair dismissal complaint made within the time limit in Section 111 of the Employment Rights Act 1996? The Tribunal will decide:2.3.1 Was the claim made to the Tribunal within 3 months plus Early Conciliation extension of the effective date of termination and act complained of ?

2.3.2 If not, was there a series of similar acts or failures and was the claim made to the Tribunal within the 3 months plus Early Conciliation extension of the last one?

2.3.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?

2.3.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable time? 3. Unfair dismissal.

3.1 Was the Claimant dismissed?

3.2 Was the reason or principle reason for dismissal that the Claimant was pregnant? If so, the Claimant will be regarded as unfairly dismissed. 5. Pregnancy and Maternity Discrimination (Equality Act 2020 Section 18)

5.1 Did the Respondent treat the Claimant unfavourably by doing the following things:

5.2 Ignoring messages sent by the Claimant to the Respondent on 27 March 2023

5.3 Not allowing the Claimant to return to work on 3 April 2023

5.4 Ignoring the Claimant’s message on 11 April 2023 enquiring about her holiday entitlement

5.5 Dismissing the Claimant

5.6 Did the unfavourable treatment take place in a protected period?

5.7 The Claimant has confirmed that her first maternity leave ended on 26 March 2023

5.8 The Claimant has confirmed her second pregnancy was announced on 17 February 2023 (at which time she was approximately 8 weeks pregnant) and that the baby was born on 25 October 2023

5.9 Was the unfavourable treatment because of her pregnancy?

5.10 Was the unfavourable treatment because of illness suffered as a result of the pregnancy? 6. No written statement of dismissal. Section 92 Employment Rights Act 1996 6.1 Did the Respondent fail to supply the Claimant with a written statement of dismissal?

Findings of Fact

[12]In reaching its findings of fact, the Tribunal had considered all the evidence, both written and oral. Whilst recognising that her evidence had not been subjected to cross-examination, the Tribunal found the Claimant to be a credible witness who gave her evidence in a consistent and coherent manner without attempting to embellish or exaggerate what had taken place.

[13]Despite the fact that the response had been dismissed, the Claimant was asked, in the course of her evidence, to comment on what had been said by the Respondents.

[14]The First Respondent provides building services to a range of commercial clients. It is based in Unit 16 at Albion Industrial Estate, Pontypridd. In their response form, the Respondents say that, at that time, it had a workforce of 14, to include the Second Respondent who is Managing Director.

[15]On 13 October 2021, the Claimant commenced employment at the First Respondent. Her job title was Office Administration Assistant. In her oral evidence, the Claimant said, and the Tribunal found, that her job had involved answering the phone, making and taking payments, raising and sending out invoices, filing documents, organising meetings and organising the office generally.

[16]The Claimant stated that her working relationship with the Second Respondent was very good and they got on well. He was very responsive when the Claimant needed to speak to him.

[17]Shortly after commencing her employment, the Claimant became pregnant; she commenced a period of maternity leave on 27 June 2022.

[18]On 17 February 2023, the Claimant attended a return to work meeting with the Second Respondent. The meeting started positively with the Second Respondent saying the business was doing well, confirming that the First Respondent had recently secured a contract with the NHS. The Second Respondent said he looked forward to the Claimant’s return, and the basis on which the Claimant was to return, in terms of hours, was also discussed and agreed.

[19]However, towards the end of the meeting, the Claimant informed the Second Respondent that she was pregnant. This was said in front of the Operations Manager and Contract Manager. Indeed, whilst not stated at the time, the Claimant was approximately 8 weeks pregnant. The baby was born on 25 October 2023.

[20]The Claimant stated, and the Tribunal found, that this news came as a shock to the Second Respondent. Whilst it was suggested by the Second Respondent in the Grounds of Response that he congratulated the Claimant, this was disputed by the Claimant in her oral evidence. She also denied that she offered to finish with the First Respondent if this presented a problem. Indeed, the Tribunal accepted the evidence of the Claimant who stated that she needed the job and the security that came with it. She was responsible for her children and needed the financial stability.

[21]The Claimant also noticed that even though her maternity leave came to an end on 26 March 2023, no-one from the Respondents had contacted her to confirm her return to work. She had to chase for a response to her message to the Second Respondent of 27 March 2023, as she wished to return to work on 3 April 2023. However, on that date, the Second Respondent sent a message stating, “it’s best to leave it until you have your routine in place”. Whilst the Claimant replied to say “that’s absolutely fine”, that was on the basis that she did not at any stage consider or suspect that her job was at risk. The Tribunal accepted the Claimant’s evidence and she stated that she was ready to commence work on 3 April 2023, having ensured the necessary childcare arrangements were in place.

[22]On 4 April 2023, the Claimant then raised the issue of holiday entitlement in her first month back as her son was due to start in school. The Second Respondent failed to respond substantively to the Claimant’s query regarding holiday entitlement which was out of character and the Claimant had to send a chasing message on 11 April 2023 and then again on 18 April 2023.

[23]It was then later that day, on 18 April 2023, that the Second Respondent telephoned the Claimant to inform her that, due to financial difficulties faced by the First Respondent and certain delays in payments being made to the business, savings had to be made. The Second Respondent confirmed that the Claimant’s employment was to be terminated due to her role becoming redundant. It was suggested that this was due to new software being installed “which meant that the Claimant’s role would no longer exist with her becoming redundant”. The Second Respondent also referred to a workshop manager being made redundant earlier in 2023, of which the Claimant had no knowledge, but he said that these financial difficulties continued.

[24]However, at the time of the meeting in February 2023 and subsequently, no mention had been made of any financial difficulties or redundancies. Furthermore, the Claimant stated, and the Tribunal found, that in the course of the conversation on 18 April 2023 no mention was made by the Second Respondent of the new software which would mean that her job no longer existed.

[25]Indeed, the Tribunal noted that one of the failures on the part of the Respondents in the course of these proceedings was to produce any evidence of the alleged financial difficulties or of the new software.

[26]At paragraph 7 of the Case Management Order of 29 February 2024, Judge Moore says as follows: “Mr Henry was frank in his accepting responsibility for the failure to comply with Orders. A draft bundle has been provided yesterday but there are further documents requested regarding the software the Respondents says resulted in the Claimant’s redundancy. These are clearly relevant to the reasons for the dismissal and as of today have not been disclosed”.

[27]Despite being ordered to do so, no information or documentation has been provided since.

[28]The Claimant also confirmed that, since her dismissal, the First Respondent has rebranded itself, recruited personnel and invested in vehicles. Whilst the roles advertised were not roles to which the Claimant would be suited, it cast doubt on the Respondents' assertion that the company was in financial difficulty. It also conflicted with what was said by the Second Respondent at the meeting on 17 March 2023 when he said the business was doing well.

[29]Following her dismissal, the Claimant stated, and the Tribunal found, that she went online to find out whether the Respondents were entitled to treat her in the way that they did, as she was convinced that the reason for her dismissal was due to her pregnancy and that her role was not redundant. Through that process, she contacted her solicitors and cooperated with them, leading to her claim form being submitted on 25 July 2023. At no stage did the Claimant receive a written statement from the Respondents setting out the reasons for her dismissal.

The Law

[30]Automatic unfair dismissal and Section 99 of the Employment Rights Act 1996 ("ERA").

[31]Section 99 of the ERA provides that an employee should be regarded as having been unfairly dismissed if the principal reason for the dismissal is of a prescribed kind or the dismissal takes place in prescribed circumstances. Those circumstances or reasons include reasons relating to pregnancy, childbirth or maternity.

[32]Regulation 21 of the Maternity and Parental Leave Regulations provides that an employee who is dismissed is regarded as unfairly dismissed under Section 99 if the reason, or principal reason, is a reason connected with the pregnancy of the employee, that includes taking or seeking to take time off for antenatal care or miscarriage. An employee will also be regarded as unfairly dismissed if she is selected for redundancy for any of those reasons.

[33]Section 18(2) of the Equality Act 2010 states, “a person discriminates against a woman if in the protected period in relation to a pregnancy of hers that person treats her unfavourably(a) because of the pregnancy or

(b) because of illness suffered by her as a result of it”.

[34]Section 18(5) states, “for the purposes of sub-section (2) if the treatment of a woman is an implementation of a decision taken in the protected period the treatment is to be regarded as occurring in that period (even if the implementation is not until after the end of that period) the protected period in relation to a woman’s pregnancy begins when the pregnancy begins and ends(a) if she has the right to ordinary and additional maternity leave at the end of the additional maternity leave period or if earlier, when she returns to work after the pregnancy or

(b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy.”

[35]For a discrimination claim to succeed under Section 18 of the Equality Act, the unfavourable treatment must be because of the employee's pregnancy or maternity leave. In considering whether there has been pregnancy or maternity discrimination, the employer's motive or intention is not relevant and neither are the consequences of pregnancy or maternity leave. Such discrimination cannot be justified. The claim of pregnancy and maternity discrimination under Section 18 of the Equality Act does not require a comparator. A woman who alleges she has been discriminated against on the grounds of pregnancy need not compare her treatment with that of a man. The consequences of pregnancy for the employer, financial or otherwise, are irrelevant in considering whether there has been pregnancy or maternity discrimination.

[36]The provisions of the Equality Act 2010 are supplemented by the Maternity and Parental Leave Etc. Regulations 1999.

[37]The Equality and Human Rights Commission has produced guidance on the Equality Act in the form of a statutory Code of Practice on employment.

[38]At paragraph 8.22 of the Code, examples are given of reasons for unfavourable treatment that will amount to pregnancy or maternity discrimination. The following are those which the Tribunal considers to be of particular relevance: the fact that because of her pregnancy the woman will be temporarily unable to do the job for which she is specifically employed whether permanently or on a fixed term contract; the cost to the business of covering her work; the failure to consult a woman on maternity leave about changes to her work or about possible redundancy.

[39]Turning to detriment under Regulation 19 of the Maternity and Parental Leave Etc. Regulations 1999, both the Employment Rights Act 1996 and the Parental Leave Regulations make it unlawful for an employer to penalise or dismiss an employee for exercising rights afforded to her in relation to pregnancy, childbirth, maternity or maternity leave.

[40]Dealing with the burden of proof, by Section 136 sub-sections (2) and (3) of the Equality Act 2010, the test in respect of the burden of proof is set out at sub-section (2). If there are facts from which the Court could decide in the absence of any other explanation that a person contravened the provision concerned, the Court must hold that the contravention occurred. However, sub-section (2) does not apply if a person shows that the person did not contravene the provision. The switching of the burden of proof is simply set out in the Code at paragraph 15.34 “if a Claimant has proved facts from which a Tribunal could conclude that there has been an unlawful act then the burden of proof shifts to the Respondent. To successfully defend a claim the Respondent will have to prove on the balance of probabilities that they did not act unlawfully. If the Respondents explanation is inadequate or unsatisfactory the Tribunal must find that the act was unlawful."

[41]For the burden of proof to shift the Claimant must show facts sufficient, without the explanation referred to, to enable the Tribunal to find discrimination.

[42]There are guidelines to be found in various precedents such as Igan -vWong

[2005] IRLR 258

which relates to a two-stage test. "The first stage requires the complainant to prove facts from which the Employment Tribunal could, apart from the Section, conclude in the absence of an adequate explanation that the Respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage which only comes into effect if the complainant has proved those facts, requires a Respondent to prove that he did not commit, or is not to be treated and having committed, the unlawful act if the complaint is not to be upheld."

[43]In Laing -v- Manchester City Council and others

[2006] IRLR 748

the correct approach in relation to the two-stage test was discussed. “No doubt in most cases it will be sensible for a Tribunal formally to analyse a case by reference to the two stages but it is not obligatory on them formally to go through each step in each case….(para 73). The focus of the Tribunals analysis must, at all times, be the question of whether or not they can properly and fairly infer race (or other) discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination but that is the end of the matter, it is not improper for a Tribunal to say, in effect, 'there is a nice question as to whether the burden has shifted but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race' ".

[44]The nub of the question remains why the Claimant was treated as he or she was and further guidance is to be found in Talbot -v- Costain Oil, Gas and Process Limited and others [2017] ICR D11, to which the Tribunal has been referred by Ms Arya. In decision of the EAT, His Honour Judge Shanks summarised the principles for Tribunals to consider when deciding what inferences of discrimination may be drawn. The Tribunal has taken account of that guidance.

[45]With regard to time limits, section 123 of Equality Act 2010 (“EqA”) states: "Subject to section 140B, proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. […] (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[46]The Tribunal has a wide discretion to extend time, but the burden is on C to show that it is just and equitable to do so: “the exercise of discretion is the exception rather than the rule” [Robertson v Bexley Community Centre

[2003] IRLR 4343

]. Analysis and Conclusions

[47]In addressing each issue in turn, the Tribunal had carried out an analysis of the facts and, applying the legal framework, had reached the following conclusions.

[48]Dealing first with the issue of time limits, it was agreed at the Case Management Hearing on 15 November 2023 that a claim in respect of something that happened before 28 March 2023 may not have been brought in time.

[49]It was submitted by Ms Arya that the Second Respondent's conduct at the meeting on 17 February 2023 and the Second Respondent's failure to respond to messages on 27 March 2023 were intrinsically linked to what occurred in April 2023 and the Claimant’s dismissal. The Tribunal agreed. They are linked in terms of conduct and they all involve the same people, namely the Claimant and the Second Respondent. Consequently, the Tribunal was satisfied that the conduct on the part of the Second Respondent in February and March 2023 represented conduct extending over a period and forms part of the overall claim. Even if the Tribunal had found this was not the case, it was satisfied that it would be just and equitable to extend time and that the Respondent would not be prejudiced.

[50]As for the claim of automatic unfair dismissal, the effective date of termination by dismissal was 18 April 2023 and it was therefore in time.

[51]Turning to the claim of automatic unfair dismissal there was no dispute that the Claimant was dismissed on 18 April 2023. Taking account of its findings of fact, the Tribunal was satisfied that, on the balance of probabilities, it was reasonable to infer that the principal reason why the Claimant was dismissed was because she was pregnant. Even though the response had been dismissed, the Tribunal nevertheless found that no evidence had been forthcoming from the Respondent to suggest that the reason was redundancy.

[52]In reaching its decision, the Tribunal took account of the change of attitude of the Second Respondent on being told by the Claimant on 17 March 2023 of her pregnancy, having said at an earlier stage in the meeting that the business was doing well, and that he was looking forward to the Claimant's return. The Tribunal also noted the change in approach in responding to her subsequent communications which contrasted with the speed of response by the Second Respondent prior to 17 March 2023.

[53]The fact that the Claimant did not return to work between her return-to-work meeting on 17 March 2023 and her dismissal on 18 April 2023 despite indicating that she wished to return, and the relative proximity between those two events, was also considered by the Tribunal to be relevant.

[54]Finally, the Tribunal took account of the complete lack of any coherent evidence-based alternative explanation from the Respondents, despite them having ample opportunity to provide one.

[55]Consequently, in respect of the claim for automatic unfair dismissal the Tribunal found that the claim against the First Respondent was well-founded and succeeds.

[56]In relation to the claim under the Pregnancy and Maternity Discrimination and Section 18 EqA, the Tribunal was satisfied that the Second Respondent's conduct at the meeting on 17 March 2023, the failure to respond to messages on 27 March 2023 and 11 April 2023, and not allowing her to return on 3 April 2023 amounted to unfavourable treatment. In particular, the dismissal of the Claimant on 18 April 2023 amounted to unfavourable treatment. Throughout this period, the Claimant was pregnant. The Tribunal was therefore satisfied that this unfavourable treatment took place in the protected period.

[57]For the reasons already outlined, the Tribunal was satisfied that, in the absence of any evidence to support any other substantive explanation, there were sufficient facts to infer that the Respondents' unfavourable treatment of the Claimant was because of the pregnancy and that the Respondents conduct was discriminatory.

[58]To confirm, taking account of the dismissal of the Respondents' response and, furthermore, the complete absence of any supportive evidence to suggest that the Respondents had acted lawfully, the Tribunal found that they acted unlawfully and that their conduct was discriminatory. The Tribunal therefore determined that the claim was well-founded and succeeded.

[59]Finally, the Tribunal found that in the absence of any documentary evidence to the contrary the Respondents had failed to supply the Claimant with a written statement of the reasons for her dismissal.

Remedy

[60]The Tribunal had been provided with a Schedule of Loss. The Tribunal noted that no Counter-schedule had been served by the Respondents, despite being directed to do so.

[61]On considering the relevant documentation to include bank statements and wage slips, the Tribunal was satisfied that the figures in the Schedule regarding how much the Claimant was being paid by the Respondent were accurate.

[62]Turning to the losses to date, the Tribunal was satisfied that the figures were correct. Furthermore, on hearing further evidence, the Tribunal was also satisfied that the Claimant had endeavoured to mitigate her loss. Indeed, taking account of the fact that she was pregnant at the time, the Claimant was to be commended for working in the months from June 2023 to October 2023. During that time, the Claimant had worked at a launderette and a caravan park. She was undertaking ironing and washing for customers. The Claimant was also cleaning caravans during the summer, in very hot conditions, travelling 45 minutes each way, up until she was 39 weeks pregnant.

[63]Consequently, the loss to date amounted to £4,483.32.

[64]As for future loss, the Tribunal accepted the figure of £1,034.88 representing remaining paid maternity leave to 11 July 2024.

[65]However, in relation to the claim of a further 39 weeks from 12 July 2024 to 12 April 2025, the Tribunal considered this to be excessive. When giving evidence, the Claimant very fairly stated that there were job opportunities within the area. Whilst the Tribunal accepted the submissions of Ms Arya that it would be difficult for the Claimant to find employment which broadly reflected her role at the Respondent, and which catered for her personal and family circumstances, the Claimant was clearly resourceful. The Tribunal concluded that a more realistic period by which time the Claimant will have secured employment was 24 weeks, totalling £6,108.00.

[66]Consequently, the total compensatory award for past and future loss was in the sum of £11,626.20.

[67]The Tribunal also awarded the sum of £521 for the Respondents' failure to provide written reasons for the Claimant's dismissal.

[68]The Tribunal therefore gave Judgment as against the First Respondent in the sum of £12,147.20.

[69]With regard to the claim for injury to feelings, the Tribunal had considered carefully the guidance to be found in paragraph 53 of Vento – v- Chief Constable of West Yorkshire Police (2)

[2003] IRLR 102

[70]It stated, “in HM Prison Service and Johnson, Smith J reviewed the Authorities on compensation for non-pecuniary loss and made a valuable summary of the general principles gathered from them. We would gratefully adopt that summary. Employment Tribunals should have it in mind when carrying out this challenging exercise. In her Judgment on behalf of the Appeal Tribunal, Smith J said at page 165 '(1) awards for injury to feelings are compensatory they should be just to both parties, they should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasors conduct should not be allowed to inflate the award. (2) awards should not be too low as that would diminish respect for the policy of the antidiscrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained as excessive awards could, to use the phrase of Sir Thomas Bingham MR, be seen as the way to “untaxed riches”. (3) awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think that this should be done by reference to any particular type of personal injury award, rather than to the whole range of such awards. (4) in exercising their discretion in assessing the sum Tribunals should remind themselves of a value in everyday life the sum they had in mind. This may be done by reference to purchasing power or by reference to earnings. (5) Finally, Tribunals should bear in mind Sir Thomas Bingham’s reference to the need for public respect for the level of award made.' ”

[71]Paragraph 65 sets out guidance to Tribunals and provides, “Employment Tribunals and those who practice in them might find it helpful if this Court were to identify 3 broad bands of compensation for injury to feelings as distinct from compensation for psychiatric or similar personal injury (1) the top band should be awarded in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the grounds of sex or race. Only in the most exceptional case should an award of compensation for injury to feelings exceed the maximum amount. The middle band should be used for serious cases which do not merit an award in the highest band and awards in the lower band are appropriate for less serious cases, such as where the act of discrimination is an isolated or one- off occurrence.”

[72]At paragraph 66 the Court added, “there is of course within each band considerable flexibility, allowing Tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case. The bands are currently upper band £33,700 to £56,200; middle band £11,200 to £33,700 and lower band £1,100 to £11,200.”

[73]The Tribunal had also been provided by Ms Arya with a helpful extract from Harvey’s which provided examples of cases where the discriminatory conduct related to pregnancy.

[74]Having listened carefully to the Claimant give evidence, the Tribunal was struck by the fact that she did not seek to exaggerate or embellish the effect on her of the Respondents' conduct. However, the Tribunal was satisfied that this must have caused real anxiety and distress over a period of time, having been dismissed when pregnant and losing her sense of financial security with all the family responsibilities that she had. The Tribunal reminded itself that the purpose of the award was not to punish the Respondents. The Tribunal concluded that this claim fell within the middle band.

[75]Taking account of the examples provided, and in particular the cases of Touati -v- Root Success Limited (London South)(Case No 2702885/2008) and Wass -v- Finest Care Limited (Teesside)(Case No 2501584/2017), which had similarities but where the conduct of the Respondents had been more severe, the Tribunal concluded, in exercising its discretion, that an award of £15,000 would be fair, reasonable and proportionate. Consequently, the Tribunal gives Judgment in this amount as against both Respondents on a joint and several basis.

[76]Therefore, the total award to the Claimant is made up as follows:76.1 Automatic unfair dismissal as against the First Respondent - £11,626.20

76.2 Failure to provide written reasons for dismissal as against the First Respondent - £521.00

76.3 Injury to feelings as against both Respondents - £15,000.00

76.4 Total - £27,147.20

[77]With regard to interest, the Tribunal accepted Ms Arya's calculations as follows:77.1 Unfair Dismissal and failure to provide written reasons for dismissal at 8% - £625.66

77.2 Injury to Feelings from 17 February 2023 at 8% - £933.90.

[78]The Tribunal orders the First Respondent to pay compensation to the Claimant in the total sum of £12,772.86.

[79]The Tribunal orders the First and Second Respondents to pay compensation to the Claimant in the total sum of £15,933.90. CERTIFICATE OF CORRECTION Under Rule 67, the

Remedy

[1]By a Judgment dated 30 May 2024, the Tribunal ordered the First Respondent to pay to the Claimant compensation, including interest, of £12,772.86. The Tribunal ordered the First and Second Respondents to pay to the Claimant compensation, including interest, of £15,933.90.

[2]By a letter dated 19 June 2024, the solicitors for the Claimant made an application for costs against the Respondents. In support of that application, the Claimant’s solicitors, Astons, sent to the Tribunal and to the Respondents a time ledger showing the work that had been undertaken from 22 June 2023 to 28 May 2024. In a separate document entitled “Claimant’s Schedule of Costs”, Astons confirmed that their claim for costs was in the sum of £14,417.07, inclusive of VAT.

[3]In response to the application, the representatives of the Respondents, Croner, had sent to the Tribunal and to Astons a letter dated 16 September 2024.

[4]On 9 April 2025, Croner had sent to the Tribunal and served on Astons a document entitled “Respondent Written Representation” together with a Witness Statement of Jeremy James Morgan with an Appendix which was neither paginated nor indexed but which ran to 21 pages.

[5]The Tribunal listened to submissions from both Ms North and Mr Cowley. The Application

[6]In its letter of 19 June 2024, Astons confirmed that their primary application was made under Rule 76(2) of the ETs (Constitution and Rules of Procedure) Regulations 2013 (“the 2013 Regulations”), now Rule 74(3) of the Employment Tribunal Procedure Rules 2024 (“the 2024 Rules”).

[7]In addition, the claim was made under Rule 76(1)(a) and/or (b) of the 2013 Regulations, now Rule 74(2)(a) of the 2024 Rules.

[8]In its application, Astons set out the chronology of the proceedings.

[9]On 12 November 2023, at a Case Management Hearing, Employment Judge Brady issued a number of directions with regard to disclosure and witness statements, listing the Final Hearing to take place on 15 March 2024.

[10]Despite chasing the Respondents representatives, Astons felt compelled to write to the Tribunal on 16 February 2024 requesting the postponement of the Final Hearing on 15 March 2024 as a result of the Respondents’ failures to comply with the directions made on 12 November 2023, and inviting the Tribunal to make Unless Orders.

[11]On 20 February 2024, the Tribunal wrote to the parties and indicated to the Respondents that Regional Employment Judge Davies was considering issuing a Strike Out Warning of the Response to the claim based on the Respondents’ failure to actively pursue the matter and that a further Case Management Hearing would be listed urgently.

[12]On 20 February 2024, Croner responded saying that the person who had conduct of the matter was on annual leave but they would be producing a joint bundle and statements by the end of the week saying that they did not foresee the need for the postponement of the main hearing. However, no such joint bundle was produced.

[13]On 29 February 2024, a Case Management Hearing took place before Employment Judge Moore. Based on the wholesale failure to comply with Orders and in the absence of any application to vary or extend time for compliance with such orders, Judge Moore issued Unless Orders with regard to discovery, preparation of a hearing bundle, and exchange of witness statements.

[14]At the Hearing on 29 February 2024, Judge Moore acceded to the Claimant’s application for the hearing on 18 March 2024 to be postponed with dates agreed with the parties on 29, 30 and 31 May 2024.

[15]The Respondents failed to comply with those Unless Orders and therefore, on 27 March 2024, Astons wrote to the Tribunal setting out details of the Respondents failures, applying for the Response to be dismissed.

[16]On 27 March 2024, the Respondents wrote to the Tribunal saying that their key witness was not available for the Final Hearing and applied to postpone the hearing in May 2024. However, the unavailability of the key witness was not raised at the Case Management Hearing on 29 February 2024 nor was any evidence produced regarding details of the holiday that had been booked.

[17]On 26 April 2024, in the absence of any evidence regarding the travel arrangements of the key witness, Regional Employment Judge Davies refused the Respondents’ application for a postponement. REJ Davies also directed that the Respondents should provide comments on the Claimant’s email of 16 April 2024 but the Respondents failed to do so. Therefore, on 3 May 2024, Employment Judge Sharp directed that the Response was dismissed.

[18]The Respondents application for reconsideration of the decision to dismiss the Response was refused following the Claimant opposing the application.

[19]At the substantive hearing on 29 May 2024, the Respondents did not attend. There had been no prior warning of their non-attendance and when contact was made with the person who had conduct of the matter at Croner’s, Mr Henry, he confirmed that the Respondents had no intention of attending, that their key witness was on holiday, and that they would be appealing the decision of REJ Davies not to postpone the hearing.

[20]It was argued by the Claimant that, throughout the course of the proceedings, the Respondents had acted in an uncooperative, unresponsive, and ultimately, unreasonable manner. The Claimant specified, as an example, that the Respondents had failed to provide additional documents that were agreed to be relevant and would be provided and which the Respondents maintained were relevant to their case.

[21]It was maintained by the Claimant’s representatives that they had been obliged to commit to undertaking much more work, and thereby incurring much greater expense, as a result of the unreasonable conduct on the part of the Respondents.

[22]In terms of the Schedule of Costs, it was based on an hourly rate of £250 plus VAT together with the agreed fee for Counsel attending the two-day Final Hearing.

[23]At the hearing of the Claimant’s application, Ms North relied on her written representations.

[24]In response to the representations made by the Respondents, Ms North maintained that the bundle of documents to which Mr Cowley refers in paragraph 2 of his written representation contained all of the Tribunals correspondence and evidence disclosed by 27 April 2024 and that they had sent to the Respondents all documents requested by them.

[25]Ms North disputed what was said at paragraph 9 of the written representation, maintaining that all documents had been sent and she stated that, following the emails from Mr Henry of Croner of 25 February 2024, requesting certain documents from the Claimant’s list, such documents were provided on 28 February 2024. As for paragraph 10, whilst Mr Henry says in an email of 28 February 2024 but he acknowledged receipt of the Claimant’s documents and that he had compiled a draft bundle for agreement, he indicated that the Respondents were searching for any additional documents which would be provided under the continuing duty of disclosure.

[26]Finally, Ms North indicated that, in terms of any suggestion that the Respondents were not in a position to pay any amount of costs, she confirmed that they had agreed a payment plan with the Respondents regarding payment of the Claimant’s compensation and the same could apply to any award of costs that may be made. The Respondents Response

[27]At paragraphs 7 to 14 of the written representation, under the heading “Case Management Orders” it was maintained by the Respondents that the purpose of the directions issued on 16 November 2023 was to ensure that the parties were ready for a full hearing by 11 March 2024.

[28]Whilst it was conceded that due to an unusually busy period in December 2023 and January 2024, there was a delay in preparing for the hearing, it was still maintained that there was sufficient time to enable the parties to be ready for the hearing listed in March of 2024, hence the Respondents’ objection to the Claimant’s application for an adjournment.

[29]As for reference to the transition by the Respondents to the “Xero” accounting system, it was suggested that it was not possible to locate the documents relating to this new accounting system but it was suggested that such documents “would probably have little probative value and would be peripheral to the issues in the case.”

[30]The Respondents continued to deny that there was any “wholesale failure to comply with Orders” or that the Claimant was prejudiced as a consequence of anything on the part of the Respondents.

[31]It was suggested that in relation to the application to postpone the revised Final Hearing on 29 to 31 May 2024 (not March as indicated in the written submission) it was not possible to produce any travel documents to support the application as “the travel documents were not in his control, the Respondent was unable to provide details of the flight until Sunday 12 May 2024.”

[32]As for the Final Hearing, it was indicated by the Respondents that a bundle was uploaded to the Document Upload Centre on 24 May 2024 which was done even though the Response had been dismissed.

[33]Under the heading of the Claimant’s costs, at paragraphs 22 to 24, it was denied by the Respondents that their actions caused any additional cost to the Claimant (not Respondent) over and above those costs normally encountered in the course of a hearing.

[34]It was suggested that, had the hearing not been postponed the Respondent had a good chance at successfully defending the claim even without the additional documents relating to the accounting software.

[35]In his oral submissions, Mr Cowley conceded that it was clear that a number of mistakes and communication problems had taken place which was exacerbated by no-one turning up to the Final Hearing.

[36]However, his primary submission was that a considerable amount of the costs claimed would have been incurred in any event. He also argued that it was inappropriate for a barrister to have been instructed as opposed to a solicitor. When asked to justify this remark, he stated simply “a barrister costs more than a solicitor”.

[37]In summary, Mr Cowley accepted that there had been problems but that this did not merit an Order for Costs being made.

[38]As for the submission that the company’s financial circumstances were such that it was not in a position to pay an award of costs, Mr Cowley accepted that no documents had been produced to support what was said by Mr Morgan in his statement. He also accepted that all of those documents contained within the Appendix attached to Mr Morgan’s statement were not relevant to the Claimant’s application. He indicated that he had only taken over management of this case a few days ago.

The Law

[39]Rule 74(1) to (3) of the Employment Tribunal Rules 2024 states as follows: 74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order 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 of it, or the way that the proceedings, or part of it, have been conducted, (b)any claim, response or reply 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 that hearing begins. (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.

[40]When costs are awarded under rule 74(3), as distinct from rule 74(2)(a), there is no need to find that a party has acted ‘vexatiously, abusively, disruptively or otherwise unreasonably’. It is sufficient that the party is clearly responsible for the breach of an order, rule or Practice Direction.

[41]When considering whether to make an award of costs under Rule 74(2)(a), the Rule imposes a three stage test: first, the tribunal must ask itself whether a party’s conduct falls within rule 74(2)(a), in other words, is its costs jurisdiction engaged?; if so, secondly, it must go on to ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against that party; the third stage is the determination of the amount of any award.

[42]The Tribunal had taken note of the guidance provided in the decision of Yerrakalva v Barnsley Metropolitan Borough Council and anor

2012 ICR 420

, CA.

[43]It was emphasised that the Tribunal has a broad discretion and should avoid adopting an over-analytical approach. 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 a party in the conduct of the case and, in doing so, to identify the conduct, what was unreasonable about it, and what effects it had. The Court stated that it is not the function of an appeal court to ‘tinker’ with costs orders, which are by their nature ‘based on and reflect broad brush first instance assessments’.

[44]The Yerrakalva case was subsequently endorsed by the Court of Appeal in Sud v Ealing London Borough Council 2013 ICR D39, CA, which held that when making a decision as to costs, a tribunal needed to consider whether, in that case, the claimant’s conduct of the proceedings was unreasonable and, if so, it was necessary to identify the particular unreasonable conduct, along with its effect. This process did not entail a detailed or minute assessment. Instead, the tribunal should adopt a broad-brush approach, against the background of all the relevant circumstances.

Findings

[45]Having read the written submissions made in support, and in opposition to, the Claimant’s application, and having listened to the oral submissions of Ms North and Mr Cowley, the Tribunal reached the following conclusions.

[46]The Tribunal was satisfied that up to, and including, the Case Management Hearing before Employment Judge Brady on 15 November 2023, there was no suggestion that the Respondents had been in breach of any Order, nor had they acted unreasonably in terms of responding to the Claimant’s claim and filing its Response.

[47]However, it was evident that, from December 2023 to the conclusion of the substantive hearing on 30 May 2024, there were significant and repeated failures on the part of the Respondents to comply with Orders of the Tribunal, to include Unless Orders. The Tribunal was satisfied that such conduct could justifiably be described as unreasonable.

[48]The Tribunal also rejects the submissions made by the Respondents that, despite their failures to comply with various Orders of the Tribunal, it would still have been possible for the substantive hearing to proceed in March 2024.

[49]To appreciate the level of concern at the Respondents’ conduct as at the date of the Case Management Hearing before Judge Moore on 29 February 2024, the Tribunal sets out below certain paragraphs from that decision: “2. The following orders have not been complied with:• 13.12.23 list of documents;

• 3.1.24 request copies of documents;

• 5.1.24 supply documents;

• 24.1.24 agree bundle; 24.1.24 send prepared bundle;

• 21.2.24 exchange witness statements. 3. The hearing is listed to start on 18 March 2024. The claimant has applied for postponement of the hearing due to the failure to comply with orders. 4. On 20 February 2024 REJ Davies advised she was considering a strike out of the response to the claim for failure to actively pursue and listed the hearing today. 5. Later that day the respondent's representative advised that he had been tied up at an in person hearing in December and then took leave until 15 February 2024. The postponement was opposed. There was no apology to the Tribunal or claimant for failing to comply with orders and no application to extend time to comply with orders passed. It was stated that a joint bundle and statements will be produced by the end of the week. 6. I asked Mr Henry for an a explanation as to why the orders have not been complied with. I observed that Croner are a large organisation and if he was going to be too busy or on leave to deal with the case why it had not been passed to another consultant. I also asked Mr Henry why there could not have been communication with Ms North and the Tribunal to ask for further time to comply with orders. What has happened is a wholesale failure to comply with orders and even as of today no application to vary / extend time. I did not find the assertion that a bundle and statements could be ready to be very fair on the claimant who would now only have just over two weeks to consider the documents, prepare a witness statement and provide instructions for the final hearing. Whilst the respondent may be able to complete the work in this timeframe, the claimant may not. Ms North confirmed the claimant could not be ready within this timeframe. 7. Mr Henry was frank in his accepting responsibility for the failure to comply with orders. A draft bundle has been provided yesterday but there are further documents requested regarding the software the respondent says resulted in the claimant's redundancy. These are clearly relevant to the reasons for the dismissal and as of today have not been disclosed. 8. For these reasons I postpone the hearing on 18 March 2024 and re list it, with dates agreed with the parties on 29, 30 and 31 May 2024. A revised notice of hearing shall follow. 9. I found the respondent's opposition to the postponement request and the assertion that the claimant should be ready despite the wholescale failures to comply with orders to be an unreasonable position to have been taken. 10. Given the previous failures to comply with orders necessitating a postponement of the final hearing the following orders are unless orders. This was fully explained and appropriate timescales were agreed for their compliance.”

[50]Having taken the decision to adjourn the hearing listed for 18 March 2024, Judge Moore relisted the case to be heard on 29, 30 and 31 May 2024. Judge Moore also issued fresh directions with regard to disclosure and exchange of witness statements which, as stated above, were made the subject of Unless Orders.

[51]On the application of the Claimant, and by a decision of 3 May 2024, Employment Judge Sharp concluded that, due to the Respondents’ breach of paragraphs 16 and 17 of Judge Moore’s Order dated 29 February 2024, and in the absence of any Response from the Respondents’ representative attempting to persuade the Tribunal not to do so, the Tribunal issued a notice confirming the dismissal of the Respondents’ Response.

[52]The Respondent applied for a reconsideration of the decision to dismiss the Response following non-compliance with the Unless Order.

[53]In the Judge’s reasons for upholding the decision to dismiss the Response, it was said as follows: “The Judge's reasons for this decision are: 1. The Respondent's representative has not disputed that the Unless Order was breached. They have not explained why they breached the Order (other than one comment that it considered one part of the Order to be superfluous) or why the Tribunal's correspondence was not responded to promptly. There is no argument that the Respondent has materially complied with the Unless Order; the Respondent's application confirms material non-compliance. 2. The relevant test to grant relief from sanctions under Rule 38(2) of the Employment Tribunal Rules of Procedure is the interests of justice. Looking back at the history of this matter, there has been a pattern of the Respondent not complying with case management orders, which has impacted on the Claimant's ability to prepare for a fair hearing. The Regional Employment Judge considered striking out the claim due to the Respondent's failure to actively pursue its defence. The Respondent complains that the outcome of its failure to comply with the Unless Order is too harsh when the parties are ready to have the issues heard. However, it appears from the Respondent's own correspondence, a draft bundle was provided (which may be missing evidence as the Respondent was still searching for evidence according to the Respondent's representative at the time), but there is no agreed bundle and witness statements have not been exchanged. The Respondent could have taken steps to rectify its failings, and has not done so. The final hearing commences on 29 May 2024. The parties are not yet ready due to the actions of the Respondent — there is no agreed bundle and questions about the Respondent's disclosure remain unanswered. 3. The Claimant's representatives have objected to the Respondent's application in a letter dated 7 May 2024. The Respondent has made no further comment; it is presumed that it has nothing further to add. The arguments made by the Claimant's representatives are accepted by the Tribunal as further reasons why the Respondent's application should not succeed. In short, the Respondent has repeatedly breached case management orders, failed to comply with the final opportunity given by the Unless Order, and has given no explanation for its conduct when it is professionally represented. It is the Claimant who faces disadvantage and prejudice as a result of the Respondent's conduct. Judge Moore's Order could not have been clearer about her concern about the prejudice the Claimant previously faced due to the failings of the Respondent, and the Respondent persisted in continuing its pattern of non-compliance, despite the existence of the Unless Order. The Claimant continues to face prejudice and it is not reasonable or fair to reduce the preparation time for the Claimant and her representatives when the Respondent has had several chances to comply; the Respondent's failures have imperilled the fairness of the hearing at the Claimant's expense. It is not in the interests of justice to permit the Response to be reinstituted.”

[54]The next example of what the Tribunal considered to be unreasonable conduct was a request made by the Respondents for the hearing on 29 and 30 May 2024 to be adjourned. As stated in the introduction to the Tribunal’s decision following the hearing on 29 and 30 May 2024, the decision to list the hearing initially for 3 days on 29, 30 and 31 May 2024 was taken at the Case Management Hearing on 29 February 2024 and was with the agreement of both parties.

[55]It was on 27 March 2024, some 4 weeks after the hearing dates in May 2024 had been agreed, that the Respondents applied for an adjournment stating that the Second Respondent had booked a holiday from 27 May 2024 returning on 3 June 2024 “proof of booking is to follow”.

[56]On 26 April 2024, with no proof having been provided, Regional Employment Judge Davies directed that the Respondents application for an adjournment was refused as no proof of the holiday booking had been provided. The Tribunal did not find the explanation provided by the Second Respondent for that failure as set out in his statement prepared for the purposes of this hearing to be persuasive, nor the explanation provided by Mr Cowley’s written representations, where he states “due to the Respondent’s schedule and that the travel documents were not in his control, the Respondent was unable to provide details of the flight until Sunday 12 May 2024.”

[57]At the very least, if such difficulties had been encountered, the Respondents would be expected to indicate such difficulties as and when they occurred.

[58]In any event, the hearing proceeded on 29 and 30 May 2024.

[59]Whilst the Response had been dismissed, in the notice informing the Respondents representatives of this decision, it states: “The Respondent will be entitled to notice of any hearings and decisions of the Tribunal but will only be entitled to participate in any hearing [relating to that part of the Response] to the extent permitted by the Employment Judge.”

[60]However, without having provided any forewarning to the Tribunal, even as a matter of courtesy, there was no appearance by or on behalf of the Respondents at the hearing on 29 May 2024. When enquiries were made of Mr Henry, he indicated that they had taken the decision not to attend and were appealing against the decision of REJ Davies to refuse their application for an adjournment.

[61]In relation to the Claimant’s application under Rule 74(3), the Tribunal was satisfied that there had been a number of occasions, as particularised above, when the Respondents had failed to comply with orders, to include unless orders, made by the Tribunal in the course of case management and had failed to provide any reasonable explanations for such failures.

[62]The Tribunal therefore found that the Claimant’s application for an order for costs pursuant to Rule 74(3) was well-founded and succeeds.

[63]In reaching its decision in respect of the Claimant’s application under Rule 74(2)(a), the Tribunal had followed the guidance of Lord Justice Mummery in Yerrakalva and also the Court of Appeal in Sud.

[64]Applying the three-stage approach, and based on its findings as set out above, the TrIbunal was satisfied that its costs jurisdiction had been engaged.

[65]Having done so, and, again, based on its findings in relation to the Respondents’ conduct during the course of proceedings as outlined above, the Tribunal was satisfied that it was appropriate to exercise its discretion in favour of awarding costs against the Respondents.

[66]The Tribunal then considered how much costs the Respondents should be ordered to pay.

[67]In doing so, it noted that the increase in costs incurred by the Claimant were directly relevant to the conduct on the part of the Respondents.

[68]In exercising its broad discretion, the Tribunal had avoided adopting an overanalytical approach but had looked at the whole picture of what had happened in this case to determine the amount to be paid.

[69]As stated, it was undoubtedly the case that there had been a whole series of failures on the part of the Respondents to comply with Orders of the Tribunal, to include Unless Orders.

[70]The Tribunal found that the breaches of various Orders of the Tribunal commenced in about December 2023 and continued right through to the conclusion of the case on 30 May 2024.

[71]There was no proper excuse, nor, indeed, explanation, for the Respondents failures to comply with the directions of the Tribunal nor had there been any apology or any application to extend time for compliance. It was particularly serious that there was a failure to comply with Unless Orders despite the candid exchange between Judge Moore and Mr Henry at the Case Management Hearing on 29 February 2024.

[72]By reference to the Schedule of Costs, and taking account of the period during which the breaches had occurred which gave rise to the Tribunal’s finding of unreasonable conduct, the Tribunal concluded that the Claimant was entitled to an award of costs representing those incurred from December 2023 less the success fee for which no documentary evidence had been produced.

[73]Taking a step back and considering the background of all relevant circumstances, the Tribunal determined that the Respondents should be responsible for £8,000, which would include VAT.

[74]In deciding on that amount, the documentary evidence to support the Second Respondent’s representations regarding the financial status of the First Respondent was non-existent. The Respondents had failed to satisfy the Tribunal that they would be unable to pay the sum of costs awarded against them.

[75]The Tribunal’s decision was founded on its conclusions that the Claimant was entitled to succeed in her application for costs both on the basis of Rule 74(3) and Rule 74(2)(a).