Mr N Booth v A-Day Consultants Ltd T/a Academics and Leading Learners Multi-Academy Trust: 1805287/2023

EMPLOYMENT TRIBUNALS

Case No 1805287/2023

Between

Mr N BoothClaimant

A-Day Consultants Ltd T/a Academics and Leading Learners Multi-Academy TrustRespondent

Before

Employment Judge Shepherd

Members

Ms H Brown

Mr K Lannaman

Mr S Irving (instructed by lay representative) for claimant

Date 9 February 2024

JUDGMENT

The unanimous judgment of the Tribunal is that the claimant for breach of the Agency Workers Regulations is not well-founded and is dismissed.

REASONS

[1]Judgment having been given by the Tribunal on 7 February 2024 following a threeday hearing. The written judgment was sent to the parties on 13 February 2024 The unanimous judgment of the Tribunal was that the claimant for breach of the Agency Workers Regulations was not well-founded and was dismissed. The first respondent requested written reasons. However, after it had been pointed out that the claim had been successfully defended and the cost of providing written reasons would take up Tribunal resources, the first respondent reflected upon their request and stated that they no longer wished to pursue the request for written reasons.

[2]On 4 March 2024 the first respondent made an application for costs pursuant to rule 76(1) (a) and (b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. It was stated that the application was on the ground that the claimant had no reasonable prospects of success.

[3]Representations from the other parties were requested. The claimant sent a lengthy response to the first respondent’s application for costs pointing out that the claimant only ever believed he was employed as an experienced, skilled teacher not as a lower grade less qualified/experienced tutor. The second respondent’s representative indicated that the application was for costs against the claimant and, therefore, the views of the second respondent were of little weight. However, it was stated that it appeared to the second respondent’s representative that the case had only proceeded to a hearing as a result of the first respondent failing to identify the claimant as a Tutor in the engagement Case Number: 1805287/2023 2 of 5 paperwork.

[4]It was agreed by the parties that the costs application should be considered on the basis of the written submissions from the parties without their attendance. The claimant’s representative provided details of the claimant’s means. The first respondent indicated that consideration of the application on the basis of written submissions alone would be consistent with the overriding objective. On 7 June 2024 the parties were informed that the application would be heard by the full Tribunal on the basis of the written submissions and the claimant was to provide details of his means which he did on 30 June 2024.

[5]The Tribunal has carefully considered the parties’ representations in reaching its

[6]The first respondent’s representative had sent a cost warning letter to the claimant’s representative on 18 October 2023 indicating that they were of the opinion that the claimant’s claim had no reasonable prospect of success. The claimant’s representative replied to this letter indicating that it was considered that the cost warning letter was a “rather naïve approach to prevent due judicial process taking place” and they were quite content with the strength of the claimant’s case.

[7]The first respondent’s representatives sent a further costs warning letter on 26 January 2024. The claimant’s representative responded indicating that the claimant had a legitimate right to have his case heard and, if the first respondent seriously believed there was no reasonable prospect of success they would have submitted a request for a deposit order.

The law

[8]The Employment Tribunal is a completely different jurisdiction to the County Court or High Court, where the normal principle is that “costs follow the event”, or in other words the loser pays the winner’s costs. The Employment Tribunal is a creature of statute, whose procedure is governed by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Any application for costs must be made pursuant to those rules. The relevant rules in respect of the respondent’s application are rules 74(1), 76(1) and (2), 77, 78(1)(a), 82 and 84. They state:- 74(1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purposes of or in connection with attendance at a tribunal hearing). 76(1) A tribunal may make a costs order or a preparation time order and shall consider whether to do so where it considers that –(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) had been conducted; or

(b) any claim or response had no reasonable prospect of success. Case Number: 1805287/2023 3 of 5 (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. 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. 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. 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 ability to pay.

[9]The discretion afforded to an Employment Tribunal to make an award of costs must be exercised judicially (Doyle v North West London Hospitals NHS Trust

UKEAT/0271/11/RN

. The Employment Tribunal must take into account all of the relevant matters and circumstances. The Employment Tribunal must not treat costs orders as merely ancillary and not requiring the same detailed reasons as more substantive issues. Costs orders may be substantial and can thus create a significant liability for the paying party. Accordingly, they warrant appropriately detailed and reasoned consideration and conclusions. Costs are intended to be compensatory and not punitive. The fact that a party is unrepresented is a relevant consideration. The threshold tests may be the same whether a party is represented or not, but the application of those tests should take account of whether a litigant has been professionally represented or not (Omi v Unison

UKEAT/0370/14/LA

). A litigant in person should not be judged by the same standards as a professional representative as lay people may lack the objectivity of law and practice brought to bear by a professional adviser and this is a relevant factor that should be considered by the Tribunal. (AQ Limited v Holden

[2012] IRLR 648

). The means of a paying party in any costs award may be considered twice – first in considering whether to make an award of costs and secondly if an award is to be made, in deciding how much should be awarded. If means are to be taken into account, the Tribunal should set out its findings about ability to pay and say what impact this has had on the decision whether to award costs or an amount of costs. (Jilley v Birmingham & Solihull Mental Health NHS Trust

UKEAT/0584/06

[10]There is no requirement that the costs awarded must be found to have been caused by or attributable to any unreasonable conduct found, although causation is not irrelevant. What is required is for the Tribunal to look at the whole picture of what happened in the case and to identify the conduct; what was unreasonable about the conduct and its gravity and what effects that unreasonable conduct had on the proceedings (Yerraklava v Barnsley MBC

[2012] IRLR 78

). As was said by Mummery LJ in McPherson v BNB Paribas (London Branch)

[2004] ICR 1398

, that there is a balance to be struck between people taking a cold, hard look at a case very close to the Case Number: 1805287/2023 4 of 5 time when it is to be litigated and withdrawing, on the one side of the scale, and others, on the other side of the scale, who do what may be described as raising a “speculative action”, keeping it going and hoping that they will get an offer. The same principle will apply in respect of respondent’s conduct in respect of unmeritorious responses.

[11]There is fundamental principle of costs in Employment Tribunal’s being the exception rather than the rule, as made clear by the Court of Appeal in Gee v Shell UK Limited

[2003] IRLR 82

and that the discretion of the Tribunal should only be exercised in exceptional cases. The onus was on the receiving party to make a compelling case that the costs threshold had been passed. Constructive dismissal claims are very fact sensitive and usually require an oral hearing to determine the matters in issue. The judgment was in favour of the respondent but there was no express criticism of the claimant within that judgment.

[12]That remains the case today. Costs are still the exception rather than the rule. The Tribunal is not satisfied that this case was exceptional. It was a claim for breach of the Agency Workers Regulations and required a hearing to determine the facts.

[13]The Tribunal found that claimant was an experienced teacher. After working as a class teacher in a primary school for many years he had worked through engagements with agencies since around 2005.

[14]The Department for Education introduced the National Tutoring Programme which followed the Covid lockdown which was designed to enable children to catch up on education lost that during the Covid lockdown.

[15]The First Respondent agency did not have a category of Tutor within their software and the nearest categorisation in the drop-down box was used. This referred to in the assignment confirmation form as “Primary Teacher” and, in one of the confirmation forms it sets out the duties as those of a teacher. The claimant’s case was that his engagement contract should be “of primacy”. However, having heard the evidence, the Tribunal found that the role actually carried out by claimant had significant differences from a role as a Teacher.

[16]The Tribunal concluded that claimant was engaged to carry out the role of NTP Tutor under the Department for Education’s scheme which had been introduced to assist children catching up on education they had missed during Covid. Those were the duties he carried out. However, this was not clear from the engagement documentation and it was necessary to hear evidence on the contractual situation and about the actual duties that were performed by the claimant.

[17]This was a case in which the Tribunal did not find in favour of the claimant. However, this had been an arguable case and it was necessary for the Tribunal to consider all the evidence before it reached that conclusion. The Tribunal is not satisfied that it has been established that the claimant had acted unreasonably in the bringing of the proceedings or the way in which they were conducted.

[18]An apposite extract from the judgment of Sir Hugh Griffiths in Marler v Robertson

[1974] ICR 72

is: Case Number: 1805287/2023 5 of 5 ‘Ordinary experience of life frequently teaches us that that which is plain for all to see once the dust of battle has subsided was far from clear to the contestants when they took up arms’.

[19]The Tribunal is not satisfied that the claimant had acted unreasonably in bringing the proceedings or that the claim had no reasonable prospects of success.

[20]The Tribunal is not satisfied that the costs threshold has been reached in this case. The first respondent’s application for costs against the claimant is refused.