Mrs R Duggan v Pure Rock Asphelte Co Ltd and Breaksea Residential Homes Ltd: 1602886/2023
EMPLOYMENT TRIBUNALS
Case No 1602886/2023
Between
Mrs R DugganClaimantPure Rock Asphelte Co Ltd (R1) Breaksea Residential Homes Ltd (R2)Respondent
Before
Employment Judge S MooreDate 20 February 2025
JUDGMENT
[1]At all material times the claimant was employed by the second respondent. The first respondent is dismissed from these proceedings.[2]The complaint of breach of contract in relation to notice pay is not wellfounded and is dismissed.[3]The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed.[4]The complaint of unfair dismissal for making a protected disclosure is not well founded and is dismissed.[5]The complaint of unauthorised deduction from wages is well founded. The respondent is ordered to pay the claimant the sum of £25.00. 10.2 Judgment - rule 61 February 2018 Case No: 1602886/2023
REASONS
[1]The ET1 was presented on 17 November 2023. The claim was heard on 1, 4, 5, 6 and 8 November 2024. All of the claimant’s claims were dismissed and oral judgment was given on 8 November 2024 with the written record sent the same day. The claimant requested written reasons which were signed on 12 December 2024 and sent to the parties on 6 January 2025.[2]The claimant had issued her claim against the first respondent. The response was filed in the name of the second respondent. This was discussed at a preliminary hearing before Judge Brace on 27 February 2024 and Judge Brace added the second respondent and the claim was re served upon the second respondent. The respondents were ordered to file an amended response addressing the identity of the employer no later than 2 April 2024. In the list of issues at the end of the order it provided that one of the issues to be determined was the correct identity of the employer.[3]The subsequent amended response set out detailed reasons as to why the second respondent was the claimant’ employer.[4]In a judgment dated 8 November 2024 and sent to the parties on 13 November 2024 the Tribunal concluded that at all material times the claimant had been employed by the second respondent and dismissed the first respondent from the proceedings. Case No: 1602886/2023 10.7 Judgment with reasons Rule 62 February 2018[5]On 13 November 2024 the first respondent made an application for a preparation time order. The claimant was directed to comment on the application no later than 10 December 2024 and all parties were required to comment on whether a costs hearing was required.[6]On 26 November 2024 the claimant’s representative replied, commenting there would be “no point” in having a costs hearing citing her financial status as unemployed and submitting that this would be more costs to the respondent as well as victory to persecution. On 27 November 2024 the claimant’s representative added further grounds that the Tribunal had accepted his request for there to be two defendants on a joint and several basis until the final hearing and further that the costs should have been minimal as the first respondent was represented by an employee (presumably this referred to Mrs Brown who had represented the first respondent at the hearing).[7]On 27 November 2024 the first respondent confirmed they agreed the application could be determined without a hearing. The second respondent confirmed that they did not intend to make any representations. This correspondence was not referred to Judge Moore until 6 January 2025 and on this basis Judge Moore has determined to consider the application without a hearing and has done so at the first available opportunity.[8]The claimant had brought claims of disability discrimination and protected disclosure detriments Grounds for application[9]The first respondent sought their costs on the basis of the following:[10]The claimant had been informed that the first respondent was not her employer in the case management agenda for the preliminary hearing before Judge Brace;a. in the amended response, it had been explained why the second respondent was the claimant’s employer and on pay slips as well as listing all of the other documents where the second respondent was the claimant’s employer including a contract of employment;b. the reason provided by the claimants for not withdrawing against the first respondent was that she believed they should be dealt with as bearing joint and several liability;c. in April 2024 the claimant have been provided with a bundle of documents which proved that the first respondent as not the employer;d. the claimant had been sent a letter in August 2024 putting her on notice that should she continue to pursue a claim against the first respondent they would make an application for the time preparation order and they were of the opinion that the claim against the first respondent had no reasonable prospects of success. Further an estimate of time and costs incurred to that point was provided and it was advised they should obtain independent legal advice about the merits of pursuing the claim against the first respondent. Case No: 1602886/2023 10.7 Judgment with reasons Rule 62 February 2018[11]The claimant’s representative replied by email challenging the hourly rate sought (£41 per hour) and also that 141 hours could not have been spent to date. He pointed out that the tribunal had agreed to allow joint defendants and he therefore asserted that the claimant was only doing what the tribunal has allowed. He went on to assert that a Mr Rossini had controlling ownership to limited companies and therefore they must be joint defendants.[12]The first respondent’s application did not set out the time incurred since August 2024 including preparation for the tribunal hearing and travel in attendance at the hearing itself. I therefore unable to consider a preparation time order in respect of that period.[13]At paragraph 76 of the written reasons I concluded: Identity of the employer Whilst the Tribunal can understand there may have been some sufficient confusion over the identity of the employer, by the time disclosure had taken place it should have been obvious to a person acting reasonably to have understood the second respondent was the employer given the findings of fact at paragraphs 16-21 above. The claimant was invited to concede this but would not do so on the basis that if one of the respondent’s became insolvent she could pursue the other. This was a misconceived position to have taken as even if this was the case, it would not follow that the claimant could have enforced any claim against a company that had not and had never employed the claimant.
The Law
[14]The power to award costs is set out in Part 13 of the Employment Tribunal Rules of Procedure 2024 (“the Rules”). This provides for a two stage test: 74 When a costs order or a preparation time order may or must be made 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[15]Rule 77 provides as follows in respect of preparation time orders: The amount of a preparation time order 77.—(1) The Tribunal must decide the number of hours in respect of which a preparation time order should be made, on the basis of—(a) information provided by the receiving party on the preparation time spent, and Case No: 1602886/2023 10.7 Judgment with reasons Rule 62 February 2018(b) the Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required. (2) The hourly rate is £44 and increases on 6 April each year by £1. (3) The amount of a preparation time order must be calculated by multiplying the number of hours assessed under paragraph (1) by the rate under paragraph (2) which is applicable to the year beginning 6 April in which the preparation time was spent.[16]Radia v Jefferies International Ltd [2020] IRLR 431, EAT sets out the approach go be taken when considering a costs order. The first question for a tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of (referring to the old rule numbers) r76(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that the tribunal may make a costs order, and shall consider whether to do so. That is the second stage, and it involves the exercise by the tribunal of a judicial discretion.[17]A Q Ltd v Holden [2012] IRLR 648, EAT provides that the fact a party is a litigant in person is factor to take into account when assessing the threshold test.[18]Vexatious conduct was defined by Lord Bingham in Attorney General v Barker 2000 1 FLR 759, QBD (DivCt) as ‘the hallmark of a vexatious proceeding is… that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process’.
Conclusions
[19]As can be seen from paragraph 8 above I concluded that it was a misconceived position to refuse to withdraw against the first respondent upon reasonable consideration of disclosure. I therefore consider that 74 (2) (a) and (b) is made out as it was unreasonable to have continued to pursue a claim against the first respondent from the point of disclosure. This was in April 2024 when the documents were provided to the claimant.[20]I therefore go on to consider whether to exercise my discretion and order for costs and have considered the following factors when reaching my decision:a. The claimant was given a warning about the costs consequences of continuing to pursue the claimant against the first respondent in August 2024.b. The claimant believed that it was for the Tribunal to decide the identity of the employer at the final hearing and relied upon Judge Brace’s order Case No: 1602886/2023 10.7 Judgment with reasons Rule 62 February 2018 especially the list of issues in this understanding. Whilst misguided, as a litigant in person I can understand why the claimant believed this had been sanctioned by the Tribunal and that the final hearing would resolve the issue. The claimant clearly did not understand that she was on notice upon receipt of disclosure that continuing a claim against the first respondent was misconceived.c. The claimant and her representative are not legally qualified and the first respondent had appeared on some pay slips and her P45. As a litigant in person she did not have the resources to evaluate what is a complex area of law and make an informed decision about who the correct employer was.d. I am unable to determine what portion of costs were incurred following disclosure in April 2024.e. The claimant does not have the financial means to meet a preparation time order even if made.[21]Having balanced the above factors I have decided not to exercise my discretion and refuse the application for costs.