Mr M I O Fouz v Columbus UK Holdings Ltd T/a RightSpend: 2202171/2022

EMPLOYMENT TRIBUNALS

Case No 2202171/2022

Between

Mr M I O FouzClaimant

Columbus UK Holdings Ltd T/a RightSpendRespondent

Before

Employment Judge G Hodgson

In person for claimant

Ms R Levene (instructed by counsel) for respondent

Date 19 April 2024

JUDGMENT

[1]All claims of direct discrimination fail and are dismissed.

[2]All claims of harassment fail and are dismissed.

[3]The claim of wrongful dismissal fails and is dismissed.

REASONS

1.1 On 28 April 2022, Mr Fouz brought a claim which alleged unfair dismissal, wrongful dismissal (notice pay), and discrimination. - 1 -

1.2 The claim of unfair dismissal was dismissed on withdrawal prior to the hearing. During previous case management, the issues recorded claims of direct discrimination and harassment. The draft issues identified the claimant relied on the protected characteristics of race, religion, and age. The Issues

2.1 On the first day, we considered the issues in this case.

2.2 At a case management discussion, on 21 August 2023, EJ Nash sought to clarify the issues. The claimant had previously been ordered to prepare a schedule of complaints. Following receipt, the respondent produced a list of issues. The order states the tribunal “finalised the list of issues which is attached to this order.”

2.3 It is apparent that list of issues contained a number of allegations of discrimination which had not been set out in the original claim form. It is unclear why. No amendment was sought or granted.

2.4 Only those claims which are pleaded can be determined by the tribunal. The tribunal should not look to documents other than the pleadings to identify the claims.1 When new facts are introduced, that generally requires amendment. When those new facts are cited as claims of discrimination, they will form new claims, and cannot proceed absent amendment. When considering whether any claim should be allowed to proceed by amendment, it may be relevant to consider whether it is objected to, but a lack of objection does not remove the need for an application and a judicial decision.

2.5 This claim is poorly pleaded. The claim form contains many bare allegations and it is unclear what if anything was advanced as an act of discrimination.

2.6 It may be possible for there to be clarification without introducing new claims. However, an informal process of clarification should not be permitted to become unbridled licence whereby new claims are introduced by particularisation, when amendment would be required.

2.7 It is unclear from the claim form what is said to be an act of direct discrimination. Harassment is not adequately identified at all.

2.8 The claimant now relies on the protected characteristics of race, religion, and age. The claimant describes himself as “Asian – Sri Lanka” and compares himself to someone who is not Asian or someone who is white. The religion relied on as is Islam. The claimant, who is age 32, compares himself to someone over 40.

The Issues

[1]See Chandhok v Tirkey EAT 190/14 and in particular paragraphs 17 and 18. - 2 - 2.9 Each of the allegations is also put as an act of harassment, and the issues purport to identify further acts of harassment, albeit these are not clearly set out in the claim form. 2.10 The alleged allegations of direct race/religious discrimination, as identified in the draft list of issues are set out below. The respondent was asked to clarify the following: whether the allegation appeared in the claim form, and if so where; if the allegation was new, whether there had been an amendment granted, and in any event whether the respondent objected to dealing with the allegation. The respondent’s comments by way of response have been included, and identified in italics. Whilst the respondent has not objected to dealing with a number of these allegations, it is clear that many are new and were not pleaded. 2.11 These are the allegations of direct discrimination as they appear in the draft issues, with the respondent’s comments set out in italics.12.1 The claimant was excluded from the meetings relating to ISO mentioned in paragraph 5.1. The comparators relied upon are Dominic Hughes, Dermot Hough, and Iain Seers. Paragraph 4 of

12.4 The claimant was excluded from the Audit prep meeting on 16 November 2021. The comparators relied upon are Dominic Hughes, Dermot Hough, and Iain Seers. Not contained in the ET1

12.5 On 25 November 2021, the claimant was asked to action the filled ISO questionnaire from Code Apogee by Mr Hughes on short notice. The comparators relied upon are Dominic Hughes, Dermot Hough, and Iain Seers. Not contained in the ET1 (no amendment, no objection) - 3 -

12.8 From April 2021 to January 2022, the claimant was not given access to the wide range of technical portals. Dominic Hughes had access but would ask the claimant to perform tasks which required him to verify that his direct reports were accessing the portal securely. The comparator relied upon is Diganta Mandal. Not in ET1 although claimant had stated it was in paragraph 6 of ET1 (no

12.9 On 29 September 2021, the pen test caused issues with the respondent's server. Mr Hughes asked the claimant's team member to act on it as he had access to the server. The claimant's access was withheld, and the claimant's team member was unreachable. The comparators relied upon is Ganesh Pandi. Not contained in the

12.10 On 30 September 2021, the claimant's team member shared issues with the ServiceChoice service provider with the claimant but he was unable to view this as he did not have access. The claimant had responsibility for this task but could not action it as his access to the server was withheld by Dominic Hughes. The comparators relied upon is Diganta Mandal. Not in ET1 although claimant had stated it was in paragraph 6 of ET1 (no amendment, no objection)

12.11 On 7 October 2021, Mr Hughes only shared screenshots of two slides/pages without giving the claimant access to SharePoint. He later shared links to SharePoint that the claimant could not access. The comparator relied upon is everyone else in the business except the claimant. Paragraph 6 of ET1 (no amendment, no objection)

12.12 On 26 October 2021, the ISO consultant shared documents with the claimant that should have been filed a long time - 4 - previously. However, the claimant did not have access to the server. On 26 October 2021, the claimant mentioned this to Dominic Hughes and he was granted access to only two files rather than the whole folder as requested. The comparator relied upon is everyone else in the business except the claimant. All ISO auditees had access except the claimant. Paragraph 6 of ET1 (no

12.13 On 17 November 2021, the claimant's access to SharePoint was revoked/lost one day before the audit. The claimant reported this to Mr Hughes but was met with no response. The claimant also followed up with a Microsoft Teams message to Mr Hughes but was met with no response. All ISO auditees had access except the claimant. Not contained in the ET1 (no amendment, no objection)

12.14 On 25 November 2021, the claimant's access to security management of his remit was restricted but all his team members and direct reports had full super-admin access. The claimant was asked to manage and regulate the security access with his team despite not having access himself. As the claimant was not given access to the portal, he was unable to verify if the access was legitimate and had to repeatedly ask Mr Mandal for confirmation. The comparator relied upon is Diganta Mandal. Not contained in the ET1 (no amendment, no objection)

12.15 On 15 December 2021, Mr Hughes shared a report with the claimant, detailing the items related to his remit, but he did not have access to the Password Policy due to having no access to SharePoint. All ISO auditees had access except the claimant. This specific allegation relating to the Password Policy is not in the ET1 although a general complaint of not being granted access to SharePoint is at paragraph 6 of the ET1 (no amendment, no

12.16 During the period 15 – 22 December 2021, the claimant was given artificial deadlines and demands two days prior to his annual leave contrary to what the respondent's auditors had said. The claimant alleges that the certification was already submitted prior to 22 December 2021, but he was emailed during his annual leave when Ganesh Pandi could have assisted the respondent. The respondent wanted the claimant to work during his annual leave. The comparators relied upon are Iain Seers and Dominic Hughes. Paragraph 9 of the ET1 (no amendment, no objection) 2.12 In addition, the draft issues identify an allegation of direct age discrimination as follows: 15.1 From November 2021 – September 2022, the shares that were identified to be allotted to the claimant were not promptly registered in his name at Companies House. The comparators - 5 - relied upon are Dermot Hough, Gehan Talwatte, John Hornby, Tiffany Crow and Dominic Hughes). Paragraph 7 of ET1 (no 2.13 The draft list of issues includes allegations of harassment. Those include all the allegations under paragraph 12. In addition, numerous matters are said to constitute, collectively, a breach of contract, as set out between

5.1 and 5.13. Each is said to be an act of harassment. The draft issues record the alleged acts of harassment as follows: 5.1 The claimant was intentionally prevented from performing his role by Dominic Hughes. Dominic Hughes withheld information from the claimant and refused to share it. The claimant communicated this to Dermot Hough but this conversation was then "leaked" to the CEO, Iain Seers. The claimant was excluded from certain meetings relating to ISO27001 ("ISO") where task ownership was mentioned against his name without his knowledge during the period between 5 May 2021 and 16 November 2021. Paragraph 3 of ET1 (no

5.2 From May 2021 to December 2021, the claimant was excluded from the ISO27001 project by Dermot Hough and Iain Seers and replaced by someone else in an unofficial capacity. Paragraph 4 of

5.4 On 28 September 2021, Dominic Hughes (Operations Director) arranged for a pen test. Mr Hughes did not include the claimant and instead included his team member when the responsibility and remit for the completion of the test was within the claimant's job description and accountable for the outcome. Not in the ET1 (no

5.6 The claimant was excluded from the Audit prep meeting on 16 November 2021, despite being one of the auditees. Not in the ET1 - 6 -

5.7 On 25 November 2021, the claimant was asked to action the filled ISO questionnaire from Code Apogee by Mr Hughes on short notice. Not in the ET1 (no amendment, no objection)

5.12 The respondent, after initially denying the claimant's request for an independent grievance process, finally agreed to set up an independent process by hiring someone in their network. However, it was later discovered that this independent HR consultant was also drafting responses and advising the respondent in the grievance raised by the claimant. The respondent also engaged in fraudulent practices during this series of events, including tampering with evidence. As a result, the claimant was denied the right to a fair and impartial grievance procedure. Paragraph 14, 14.1, 14.4.1, 14.4.2 of the ET1 (no amendment, no objection) - 7 -

5.13 The claimant, after being denied a fair and impartial grievance process by the respondent, suggested that the Board of Directors conduct an independent investigation. However, the Board sided with the CEO, CFO, and HR, the individuals against whom the claimant had a grievance. The Board failed to conduct their own fact-finding and provide an impartial grievance procedure. As a result, the alleged individuals were allowed to continue their fraudulent practices. Paragraph 14.3 although there is no reference to the claimant suggesting the Board of Directors conduct an independent investigation. 2.14 It is the claimant’s case that he resigned on 6 January 2022 because of a breach of the term of mutual trust and confidence. 2.15 The respondent alleges that all allegations of discrimination and harassment which predate 26 October 2021 have not been brought in time and should be dismissed. It is the respondent’s case that there is no continuing course of conduct. 2.16 The claim of unfair dismissal was previously dismissed on withdrawal. 2.17 The alleged dismissal was not cited as an act of discrimination, albeit the claimant stated that each of the matters relied on were each individually discriminatory. 2.18 It follows that the issues, as adopted by the tribunal, in August, are unsatisfactory. The respondent has identified, correctly, numerous allegations which were not contained in the claim form. They should not have been included in any list of issues adopted by the tribunal. As no amendment was allowed, I assume inclusion in the list of issues of claims that were not pleaded was a mistake. The issues cannot stand as a definitive statement of case and are subject to the observations of the respondent as set out above. 2.19 Only those allegations which are contained in the claim are allegations that may be decided by the tribunal.2 However, in considering the claim, we will have regard to all of the matters raised which appear in the draft issues. Evidence

3.1 The claimant filed a witness statement.

3.2 For the respondent, we received witness statements from Mr Dominic Hughes (operations director), Mr Iain Seers (chief executive officer), and Mr Dermot Hough (chief financial officer).

Evidence

[2]This point was addressed at paragraph 9 in Anya v University of Oxford and another

2001 IRLR 399

, CA (per Sedley LJ) - 8 - 3.3 The claimant and the respondent both filed chronologies and cast lists 3.4 We received written submissions, and then further written submissions following our request. Concessions/Applications4.1 On day one, the respondent applied to amend the response. During the course of disclosure, the claimant disclosed 78 documents which were either video recordings or audio recordings of business discussions. It is the respondent’s position that these were illicit and unauthorised and the conduct amounted to repudiatory breach of contract. The amendment sought to plead a defence to any claim of wrongful dismissal based on the subsequently discovered alleged repudiatory breach. The respondent relied on the case of Boston Deep Sea Fishing and Ice Company Ltd v Ansel (1888) 39 CHD 339.

4.2 We considered the application to amend. The defence could not have been pleaded prior to disclosure, as the recordings were illicit and were only brought to the respondent’s attention on disclosure. The matter had been raised in correspondence. There was no reason why the claimant could not deal with the defence at the hearing. There would be hardship to the respondent if it could not rely on the defence. The balance of hardship favoured allowing the amendment. In any event, this amendment is concerned with remedy. It is not relevant if the claimant fails to show he was not constructively dismissed. Further evidence can be produced at any remedy hearing.

4.3 The respondent alleged that the claimant was dishonest, as demonstrated by his covert recording of numerous meetings. There was some dispute as to the evidence given on this. The parties were requested to provide further written submissions in relation to the allegation of dishonesty. The Facts

5.1 The respondent’s business concerns marketing procurement and marketing consultancy. The respondent employed the claimant from 15 March 2021 until his resignation, with immediate effect, on 6 January 2022. He was employed as chief product officer.

5.2 The business involves bench marking marketing salaries across 75 territories. It does this through a procurement platform which enables clients to identify, evaluate, and select marketing agencies more efficiently and confidentially.

5.3 The claimant was appointed as chief product officer for the platform known as RightSpend. He was to assist the senior team with the technical aspects of RightSpend. Creation of RightSpend was outsourced to a team based in India, Code Apogee, which consisted of two developers. - 9 - The claimant was to work alongside Code Apogee. Code Apogee would report to the claimant.

5.4 The respondent’s business was young and expanding; it had few employees. It did not have a formal HR department. To assist in bids for work, by demonstrating proof of stability and adequate control mechanisms, it was decided to seek an ISO accreditation. This involved drafting procedures, and seeking accreditation. Mr Iain Seers, chief executive officer, nominated Mr Dominic Hughes, to oversee and implement the ISO accreditation project.

5.5 The ISO project covered a number of sectors, and generated significant volumes of work. The claimant’s involvement was limited, and related only to the product sector, with which he was concerned. The claimant did not have responsibility for, or overview, of the ISO accreditation product. There were many meetings and discussions concerning aspects of ISO accreditation, the interaction with various sectors of the respondent’s business, for which the claimant had no responsibility and had their involvement.

5.6 On 6 January 2022, the claimant resigned. When he resigned, he had given no prior indication to the respondent’s senior management that he had any work concerned for that he was unhappy. His resignation letter stated as follows: This is to inform, I’m made to resign with no choice, from the position of Chief Product Officer at RightSpend effective today. It has been a constant struggle to continue working with the toxic culture and two-faced approach primarily from Iain and Dom. I have been facing bullying, harassment, and discrimination. Blatant misuse of power and complete disregard for the responsibility they possess and involved in unethical and deceptive practices while thinking they are immune. Not only Iain continued doing those, but also condoned and made others do it for him, and it was a tool/method to constantly put me under stress, unfair treatment, sidelining, and undermining. There were deliberate tactics to put me under stress and set me up to fail. Iain and Dom were involved in serious gross misconduct by any rule book and it is evident there was concerted effort on this for the eventual outcome of pushing me out. Number of these happened with your own awareness and for some you were a party to and for some you were a witness of and some you were aware of, and you still turned a blind eye and supported their conduct - while being the HR. Without any support, this has pushed me to a lonely zone at work. These are not the values of any organisation or leadership and work doesn’t have to feel this way or make someone’s life outside work to be negatively influenced or put under stress. I wouldn’t be making these statements without careful consideration and evidence to back those. However much I have tried to put on a brave face and tried to continue the work, it has reached a tipping point and having a negative impact on my mental health and life outside work. - 10 - I haven’t lined up another job and then resigned. I am pushed towards making a choice between an aggravating deliberately toxic environment or health and life outside work - left with no choice but to resign. The deliberate games and tactics to put me under stress unfairly has made my position untenable. You may understand how seriously this has impacted me to consider quitting without a job lined up. If you require any info from me, I’ll be sharing it via email during the next three months. However, I’m not in the right frame of mind to continue any engagements with Iain and Dom.

5.7 The claimant gave no proper detail of his reason for resigning. Mr Dominic Hughes responded on 7 January 2022 stating the resignation was a surprise.

5.8 Mr Hughes referred the claimant to the grievance policy and stated, “I would kindly ask you to reconsider your resignation and raise a grievance.” He confirmed that whilst the matter was resolved, the claimant’s access to the respondents systems would be suspended.

5.9 On 11 January 2022, the claimant responded stating he did not wish to follow the grievance procedure. As any grievance would be against the senior management, he stated that it could not be a fair process. He rejected the request to withdraw his resignation stating it was “beyond common sense.”

5.10 On 13 January 2022, the claimant was asked to comply with his contract, including deleting confidential information and the return of company property. He was asked to give details of any matter that may constitute a grievance. He was told an independent external party would be appointed to hear the grievance.

5.11 The claimant responded on 17 January 2022. He provided no details of his complaints. He stated “Your insistence of asking to provide details of my grievance while choosing to ignore my explanation around why I did not do that in the first place, makes me question your motives.” The claimant indicated that he would proceed with tribunal proceedings. He stated he held “some information to defend this matter.”

5.12 The respondent approached, and appointed, an independent HR company to conduct the grieance. The claimant chose not to engage, and provided no details as grievance at any time.

5.13 As part of these proceedings, the claimant has identified a number of areas of concern. It is appropriate to deal with these thematically. The claimant has provided limited evidence, and in relation to some of the matters raised, no evidence at all. We will consider each of the matters thematically. To the extent further facts need to be found, we will consider those in our conclusions. The claimant’s role in ISO accreditation - 11 -

5.14 The claimant had some responsibility for assisting in ISO accreditation to the extent where impinged on his product sector. He was not required to attend all meetings. He did attend some meetings. The claimant’s complaints are limited to the period from 5 May 2021 to 16 November 2021. He refers to being excluded from numerous meetings. The claimant failed at all times to identify those meetings he was excluded from. There is no credible evidence that he was excluded from any meeting. Throughout that period, the claimant was invited to meetings including invitations on 5 May 2021, 22 June 2021, 9 July 2021, 30 July 2021, 19 August 2021 (he clearly attended that meeting, as it is referred to in the subsequent email of 23 August 2021), 6 October 2021, and 18 November 2021. It is clear other senior managers were not invited to all of those meetings. For example, Mr Dominic Hughes was not invited to the meeting on 6 October 2021. The claimant’s role in penetration testing

5.15 The claimant was required to provide assistance in matters relating to RightSpend; first, to progress multifactor authentication safeguarding access to the system; second, to produce a business continuity plan (BCP) for the product, RightSpend. The BCP is a disaster recovery plan for RightSpend in the event of a cyber security attack.

5.16 As part of the accreditation, in order to establish vulnerabilities, the respondent arranged a “penetration” test. This involved instructing a third party company, Bulletproof, to actively seek to compromise the respondent’s IT system. The claimant was informed of this on 20 September 2021 by Mr Dominic Hughes. The test was to take place between 25 October and 29 October. The claimant gives no evidence to demonstrate that he was not informed of the test.

5.17 At paragraph 26 of his statement the claimant says: On 02 November 2021 - Regarding the Penetration Testing Result, we cam[e] out with zero issues. This is another clear example that since I joined I have migrated the platform to a robust, stable and secure one. Gradually the results started to speak for itself.

5.18 It is apparent the claimant is taking credit for the work undertaken.

5.19 Mr Dominic Hughes praised the claimant for his involvement on 2 November 2022. He stated: Yes, good result. Well done to you and the team. It feels like we have finally made a leap forward and resolved some of those long standing historical issues. This will put us onto a much better footing for 2022!

5.20 The emails do not show the claimant complaining that he was, in any manner, excluded from the process. Code Apogee - 12 -

5.21 Code Apogee were responsible for the initial development of RightSpend. Mr Danip Mandal was a developer and he reported to the claimant. He remain involved day-to-day. He was supported by Mr Ganesh Pandi, an engineer for Code Apogee.

5.22 The claimant maintained oversight. In evidence the claimant says: 22. Supplier questionnaire and the return of that from CodeApogee. Dermot asks are they compliant on ISO. For which I mentioned they are thin on that. I say to Dermot that we take advise from Arnie (ISO Consultant) on that on 25 Nov 2021. Please refer to pages 539 and 605 in the bundle.

5.23 In the issues, there is reference to events of 5 November 2021.

5.24 On 5 November 2021, Mr Dominic Hughes sent an email to the claimant and concerning the need to demonstrate how and why the business was “comfortable with the security processes.” He noted that the historical documentation did not deal with the matter adequately. There was reference to the need to send the security questionnaire the claimant was asked to action it.

5.25 On 25 November 2021, the claimant sent the completed supplier questionnaire from code Apogee to Mr Dominic Hughes. Hiring individuals

5.26 The claimant was involved in the process of hiring individuals relevant to his sector. We accept the respondent’s evidence that the final decision on hires, in that sector, was the claimant’s.

5.27 It was standard practice for potential new employees to be interviewed by more than one person. The way in which that policy was implemented varied from time to time.

5.28 Around October 2021, it was decided to hire a developer who would be based in the UK. The respondent wished to limit its dependence on Code Apogee. By December 2021, the claimant was dealing directly with the recruiter. The claimant conducted an initial interview with the candidate. He asked Mr Dominic Hughes to be present at a second interview to see if the candidate was a good fit.

5.29 There was a subsequent discussion about the potential salary for a candidate. She was seen to be good technically but light on experience, albeit she had been involved in an appropriate mix of tasks in her past roles. We have not been provided with details of her salary, the sound requested, or the salary range. Mr Hughes noted that she was relatively junior. Her age was approximately 30. He considered the salary she was requesting was higher than market value given her experience. We have been taken to no specific correspondence concerning this. - 13 -

5.30 In another interview, with a different candidate, Mr Kettle, around 15 November 21, Mr Dominic Hughes was also present at the interview. The claimant asked a question along the lines of “Are you happy that the team in India may take umbrage with you and leave the business, leaving you to pick everything up and deal with it.” Mr Dominic Hughes did not find the question appropriate. He thought it was unduly negative and off-putting. He discussed the matter with Mr Seers. Mr Kettle chose not to proceed with the appointment.

5.31 Mr Seers spoke to the claimant afterwards to indicate that he should not scare people off. Access to SharePoint

5.32 The claimant’s evidence on this point has been limited and at times the respondent used Microsoft SharePoint to support its business. SharePoint was used across the business and supported platforms. Administration access would give the right to view all parts of SharePoint, including all sales information and or confidential business matters. Full access was not needed to view the parts of SharePoint relevant to the ISO accreditation project, or matters relevant to RightSpend .

5.33 The claimant has given contradictory and incomplete evidence. At paragraph 16 of his statement he says 16. I asked Dominic and Iain that I need Admin access to the Microsoft account. The request went unheard and I had to make other workarounds to complete the implementation, which was against the ISO rules anyways.

5.34 At page 379 Is an email of 10 August 2021 from the claimant to Mr Hughes which states: We are working on a POC for SSO with barebones. It requires admin access on our Microsoft subscription to continue with that. Can you please add me as an admin?

5.35 During his evidence, the claimant stated that he had never asked for administration access to SharePoint. His oral evidence is contradicted by his written evidence and by the email above.

5.36 We accept the respondent’s evidence that the claimant asked for administration access to SharePoint. We accept the respondent’s evidence that it was not necessary for the claimant to have that access in order to perform those functions and access was denied. This was in accordance with the respondent’s overriding policies which allow access only as necessary.

5.37 We asked the claimant to confirm when he made requests for access, and what access he requested. The claimant failed to deal with that in his oral - 14 - evidence, his written evidence, or by way of submission of further evidence afterwards. Relevant policies

5.38 The claimant did request access to certain documents. We accept the respondent’s evidence that he was given access to all documents which were appropriate to his duties when he requested them. For example, on 4 January 2022 the claimant made the following request: I’ve got the Secure Development Policy. Can you share the other policy files they should adhere to? Thanks. Mr Hughes responded Hi Irshard, I believe it is IS-DOC-5.2 - Information Security Policy Statement v1.1 which is also in the same folder. But give it a quick read through before sending to code to make sure it all makes sense. Let me know if you think we need to change anything. Best

5.39 On another occasion, on 7 October 2021, Mr Hughes shared a further document by SharePoint. The documents were developing. We accept the respondent’s evidence that it is often easier to share the most up-todate document.

5.40 The claimant has pointed to no documents where he suggests that he found this approach unsatisfactory, either in principle, or in the nature and extent of disclosure.

5.41 We find the respondent’s approach was consistent with its own policies. It provided the claimant access to documents, as and when required

5.42 Shortly before the audit which commenced on 4 November 2021. The claimant was given access to all of the policy documents relevant to ISO. It is the claimant’s case that he made a request on 3 November 2021, as set out in his chronology. However, the claimant’s evidence on this point is unclear and unsatisfactory. He says this at paragraph 23.1 – You can note from MS teams chats on 03 November 2011 that my sharepoint access was revoked one day before Audit and I never had full access to the sharepoint until ONE day before the audit. I have been asking for this access ever since joining and it is evident I had various requests as detailed in paragraphs above.

5.43 It remains unclear what rights the claimant believes were revoked. It remains unclear what requests he made, and when. Being asked to work over Christmas

5.44 Production of a BCP for RightSpend spend was the claimant’s responsibility and have been a fundamental duty since his employment in - 15 - March 2021. By December 2021, the claimant had not produced an appropriate policy or procedure.

5.45 Mr Seers anticipated the claimant should produce a document of approximately six pages identifying the relevant product, the potential threats, and the specific way in which it could be recovered in the event of problems such as a cyber-attack.

5.46 This lack of policy was noted as a weakness as part of the audit process. On 17 December 2021, the claimant sent evidence and notes for the ISO audit remediations.

5.47 Mr Seers called the claimant. Mr Seers was not aware the claimant was recording the conversation. He was surprised that on several occasions the claimant asked whether he was required to work over Christmas. We accept Mr Seers told the claimant he was not so required, and this is consistent with the later emails are set out below.

5.48 Mr Seers considered the position to be unsatisfactory and he wrote to the claimant on 20 December 2021. He stated that there still did not appear to be “a step-by-step process for BCP in the event the RightSpend server is down.” The text of a policy provided by the claimant was brief and Mr Seers found it unsatisfactory. The totality of the text as supplied by the claimant appeared to be as follows: Alternatively we can spin up a new environment from the master ISO and initiate a new EC2 instance from the Master ISO of the application within one hour and continue to serve the clients.

5.49 The claimant responded on 20 December 2021 saying “let me pass this requirement to Ganesh.”

5.50 On 21 December 2021, Mr Seers noted that he had requested the information the week previously, and the matter had been flagged post audit. Mr Seers was, essentially, asking the claimant to perform his duties, and pointing out to the claimant that he had had time to do so, but it failed.

5.51 The claimant responded by saying he was not “clear” on the “expectations.” In the same email of 21 December 2021, the claimant asked “Do you want me to come back to work this week?”

5.52 On 22 December 2021, Mr Seers made it clear that the claimant was to pick the matter up in the New Year. He was not required come back. He was not required to work over Christmas. Shares

5.53 As part of his financial package, the claimant was awarded shares. He was sent the equity documents in April 2021. The shares were his. The claimant did not sign the documents. He deliberately delayed, but failed to - 16 - tell the respondent that he was delaying or why. On 16 April, the claimant’s email stated he had a few questions but would sign once they were cleared. It is unclear what those questions were. Before us, the claimant suggested that he needed to make some payment and did not have the money. We do not need to resolve this. The claimant chose to delay. The respondent contacted the claimant on a number of occasions seeking return of the documents. The lawyers sent the documents on 16 April 2021. He was contacted again on 19 April 2021.

5.54 The claimant eventually signed the relevant documentation in November 2021; this perfected his legal ownership, as he held the share certificate.

5.55 The shares were registered at Companies House. On 20 October 2021, shares were issued to other members of staff. Registration at Companies House was an administrative matter. The claimant shares, and those of other members were registered on 7 September 2022. The law

6.1 Direct discrimination is defined in section 13 of the Equality Act 2010.

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

6.2 Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

is authority for the proposition that the question of whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was. Accordingly: employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. (para 10)

6.3 Anya v University of Oxford CA

2001 IRLR 377

is authority for the proposition that we must consider whether the act complained of actually occurred (see Sedley LJ at paragraph 9). If the tribunal does not accept the there is proof on the balance of probabilities that the act complained of in fact occurred, the case will fail at that point.

6.4 Harassment is defined in section 26 of the Equality Act 2010. (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. - 17 - (3) … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account-- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are-- age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.

6.5 In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

the EAT (Underhill P presiding) in the context of a race discrimination case, made it clear that the approach to be taken to harassment claims should be broadly the same. The EAT observed that 'harassment' is now defined in a way that focuses on three elements. First, there is the question of unwanted conduct. Second, the tribunal should consider whether the conduct has the purpose or effect of either violating the claimant's dignity or creating an adverse environment for him or her. Third, was the conduct on the prohibited grounds?

6.6 In Nazir and Aslam v Asim and Nottinghamshire Black Partnership

UKEAT/0332/09/RN

, [2010] EqLR 142, the EAT emphasised the importance of the question of whether the conduct related to one of the prohibited grounds. The EAT in Nazir found that when a tribunal is considering whether facts have been proved from which a tribunal could conclude that harassment was on a prohibited ground, it was always relevant, at the first stage, to take into account the context of the conduct which is alleged to have been perpetrated on that ground. That context may in fact point strongly towards or against a conclusion that it was related to any protected characteristic and should not be left for consideration only as part of the explanation at the second stage.

6.7 In Dhaliwal the EAT noted harassment does have its boundaries: We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase. We accept that the facts here may have been close to the borderline, as the Tribunal indeed indicated by the size of its award.

6.8 Harassment may be unlawful if the conduct had either the purpose or the effect of violating the complainant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. - 18 -

6.9 A claim based on 'purpose' requires an analysis of the alleged harasser's motive or intention. This may, in turn, require the Employment Tribunal to draw inferences as to what that true motive or intent actually was: the person against whom the accusation is made is unlikely to simply admit to an unlawful purpose. In such cases, the burden of proof may shift, as it does in other areas of discrimination law.

6.10 Where the claimant simply relies on the 'effect' of the conduct in question, the perpetrator's motive or intention even if entirely innocent does not in itself afford a defence. The test in this regard has both subjective and objective elements to it. The assessment requires the tribunal to consider the effect of the conduct from the complainant's point of view: the subjective element. It must also ask, however, whether it was reasonable of the complainant to consider that conduct had that effect: the objective element. The fact that the claimant is peculiarly sensitive to the treatment does not necessarily mean that harassment will be shown to exist.

6.11 The requirement to take into account the complainant's perception in deciding whether what has taken place could reasonably be considered to have caused offence reflects guidance given by the EAT in Driskel v Peninsula Business Services Ltd

[2000] IRLR 151

, which concerned the approach to be taken by employment tribunals in determining whether alleged harassment constituted discrimination on grounds of sex. In Driskel the EAT held that although the ultimate judgment as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant's subjective perception of the conduct in question must also be considered.

6.12 Section 23 refers to comparators in the case of direct discrimination. (1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.

6.13 Section 136 Equality Act 2010 refers to the reverse burden of proof. (1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.

(5) This section does not apply to proceedings for an offence under this Act.

(6) A reference to the court includes a reference to-- - 19 - (a) an employment tribunal; (b) …

6.14 In considering the burden of proof the suggested approach to this shifting burden is set out initially in Barton v Investec Securities Ltd

[2003] IRLR 323

which was approved and slightly modified by the Court of Appeal in Igen Ltd & Others v Wong

[2005] IRLR 258

. We have particular regard to the amended guidance which is set out at the Appendix of Igen. We also have regard to the Court of Appeal decision in Madarassy v Nomura International plc

[2007] IRLR 246

. The approach in Igen has been affirmed in Hewage v Grampian Health Board

2012 UKSC 37

6.15 There is a dismissal when the employee terminates the contract, with or without notice, in circumstances in which he or she is entitled to terminate it, with or without notice, by reason of the employer’s conduct.

6.16 The leading authority is Western Excavating ECC Ltd -v- Sharp

[1978] ICR 221

. The employer’s conduct which gives rise to constructive dismissal must involve a repudiatory breach of contract Lord Denning stated: If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself as discharged from any further performance. If he does then that terminates the contract by reason of the employer’s conduct. He is constructively dismissed.

6.17 In summary there must be established first that there was a fundamental breach on the part of the employer; second, the employer’s breach caused the employee to resign; and third, the employee did not affirm the contract as evidenced by delaying or expressly.

6.18 In so called last straw dismissals there can be a situation where individual actions by the employer, which do not in themselves constitute a breach of contract, may have the cumulative effect of undermining the implied term of mutual trust and confidence. One or more of the actions may be a fundamental breach of contract, but this is not necessary. It is the course of conduct which constitutes the breach. The final incident itself is simply the last straw even if in itself it does not constitute a repudiatory breach. The last straw should at the least contribute, however slightly, to the breach of the implied term of trust and confidence.

6.19 There is no breach of trust and confidence simply because the employee subjectively feels that such a breach has occurred no matter how genuinely this view is held. If, on an objective approach, there has been no breach then the employee's claim will fail (see Omilaju v Waltham Forest London Borough Council

[2005] EWCA Civ 1493

[2005] ICR 481

, CA). The legal test entails looking at the circumstances objectively, - 20 - i.e., from the perspective of a reasonable person in the claimant’s position. (Tullett Prebon PLC v BGC Brokers LP

[2011] IRLR 420

, CA.)

6.20 The repudiatory breach or breaches need not be the sole cause of the claimant’s resignation. The question is whether the claimant resigned, at least in part, in response to that breach. (Nottinghamshire County Council v Meikle

[2004] IRLR 703

, CA; Wright v North Ayrshire Council

UKEATS/0017/13

6.21 Omilaju v London Borough of Waltham Forrest

2005 ICR 481

CA is authority for the proposition that the last straw does not have to be of the same character as the earlier acts, nor must it constitute unreasonable or blameworthy conduct, although in most cases it will do so. But the last straw must contribute, however slightly, to the breach of the implied term of mutual trust and confidence. An entirely innocuous act on the part of the employer cannot be a final straw. The test is objective. It is unusual to find a case where conduct is perfectly reasonable and justifiable, but yet satisfies the last straw test.

6.22 In Malik v Bank of Credit and Commerce International SA

1997 IRLR 462

. The House of Lords confirmed that there is an implied duty of mutual trust and confidence as follows: the employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

6.23 We would note that it is generally accepted that it is not necessary that the employer's actions should be calculated and likely to destroy the relationship of confidence and trust,3 either requirement is sufficient.

6.24 Where an employee is constructively dismissed, the employee may be entitled to be paid for the notice period. Conclusions

7.1 We first consider the allegations of discrimination which are found at paragraph 12 of the draft list of issues, as set out above.

7.2 To succeed in a claim of direct discrimination we need to consider the following steps. First, what is the act or omission, as pleaded, which is said to amount to a detriment? Only those alleged detriments set out in the claim form can be adjudicated. Second, has the claimant proven that the act or omission happened at all? If not, there is no action or omission capable of being a detriment. Third, if the potential detriment is established factually, is it detrimental treatment at all? Fourth, are there facts from which we could conclude that the treatment contravened the relevant provision? Fifth, has the respondent established, on the balance of probability, an explanation for the treatment which in no sense

Background

[3]See, for example Baldwin v Brighton & Hove City Council

[2007] IRLR 232

- 21 - whatsoever is a contravention the provision, in this case section 13 Equality Act 2010? 7.3 With those points in mind, we consider the various alleged allegations of detrimental treatment as set out in paragraph 12 of the draft list of issues, as reproduced above.12.1 The claimant was excluded from the meetings relating to ISO mentioned in paragraph 5.1. The comparators relied upon are Dominic Hughes, Dermot Hough, and Iain Seers. Paragraph 4 of ET1 (no amendment, no objection) 7.4 The claimant fails to establish he was excluded from any ISO meetings and this claim fails. To establish exclusion he would have to show he had a reasonable expectation of inclusion. Establishing that there were meetings and that he did not attend all of them does not establish exclusion.

12.2 On 28 September 2021, Mr Hughes arranged for a pen test. Mr Hughes did not include the claimant and instead included his team member when the responsibility and remit for the completion of the test was within the claimant's job description and accountable for the outcome. Not contained in the ET1 (no 7.5 The claimant fails to establish that the alleged detrimental treatment occurred. It is wrong to say the claimant was not included. He knew the pen test was to take place. He had been informed in advance. It is apparent, from the subsequent documentation, that the claimant took credit for the process. There is no indication in the contemporaneous documents that the claimant was excluded.

12.3 On 5 November 2021, Mr Hughes told the claimant he would send an addendum to Code Apogee which the claimant had asked him to send in October 2021. The claimant, having being excluded from the ISO meetings referred to in paragraph 7.1, was asked by Mr Hughes to 'take the lead' on the addendum without being part of those meetings. The comparators relied upon re Dominic Hughes, Dermot Hough, and Iain Seers. Not contained in the ET1 (no 7.6 It is unclear what is said to be the detrimental treatment the claimant was not excluded from ISO meetings. 7.7 On 5 November 2021, the claimant was asked to send a security questionnaire to Code Apogee. This was a simple task. He agreed to do it. He later sent the completed document to Mr Hughes. In no sense whatsoever was he inhibited in this process by involvement with, or noninvolvement with the ISO meetings. 7.8 As to why the individuals are cited as comparators, there is no adequate explanation from the claimant. There is no explanation for why the - 22 - claimant alleges the comparators were in the same material circumstances; they were not. 7.9 It follows it is unclear what is said to be the detrimental treatment. The claimant was asked to do a simple task which was in accordance with his duties, which presented no difficulties, and to which he did not object. The treatment was in no sense detrimental. The explanation is simple: the work was required and it was within the claimant’s duties. We accept that explanation. As an act of discrimination, this fails.

12.4 The claimant was excluded from the Audit prep meeting on 16 November 2021. The comparators relied upon are Dominic Hughes, Dermot Hough, and Iain Seers. Not contained in the ET1 7.10 It is accepted the claimant was excluded from the audit preparation meeting on 16 November 2021. This was attended only by Mr Hughes, who was leading the process, and Mr Arnie Owen (an external ISO expert). The purpose was to go over all the documents created prior to the review starting on 8 December 2021 and to check everything was in place. By that time, the documents had been created and there was no need to involve any further members of the team. The claimant refers to Mr Hough and Mr Seers as comparators. They did not attend either. There are no facts from which we could infer this was discrimination because of any of the protected characteristics relied on. The explanation is established: the claimant wasn’t needed, he had no responsibility for this part of the process, and there was no reason to invite him.

12.6 From October 2021 to 4 January 2022, the claimant was not allowed to hire his direct reports independently and Dermot Hough and Dominic Hughes wanted to be present at all the interviews the claimant was performing for his team. The comparators relied upon are Tiffany Crow and George Roumanis). Paragraph 5 of ET1 (no amendment, no objection) 7.12 We accept that the claimant was not allowed to hire his direct reports entirely independently. He had the final decision. We do not accept that Mr Hough and Mr Hughes insisted on being present at all the interviews. We have referred to a specific instance, above, where the claimant interviewed alone. 7.13 The claimant has given no evidence to establish that the comparators were in a the same material position as him. We accept the respondent’s - 23 - evidence that hiring staff is always scrutinised to some degree by more than one person. 7.14 If an explanation is needed, it is established. The claimant was treated the same as everyone else. At some stage of the process, there was always oversight by another individual. This may involve observation, discussion, or joint interview. That was standard practice. It would be unusual for an employer to delegate hiring staff to one person. We accept the respondent’s evidence that it would be poor practice. We accept the explanation that the respondent was seeking to ensure appointment of individuals appropriate to the business.

12.7 From April – November 2021, the claimant was not given access to the respondent's internal team resources in SharePoint. The claimant alleges that junior colleagues and new starters were given immediate access to the SharePoint and his repeated requests to gain access were ignored. This led the claimant to not being able to perform specific tasks required by his role efficiently. The comparators relied upon are Tiffany Crow, Mareike Ahner, Claudette Pierre, Jamie Pierre and Maria Overthrow. Paragraph 6 of ET1 (no 7.15 This allegation is imprecise. The claimant was given access to SharePoint resources, and the general allegation that he was not fails. Junior employees were not given total access to the entirety of SharePoint. There is no evidence juniors were given access more expediently than the claimant was given access. That allegation fails. There is no evidence that the claimant was unable to perform specific tasks because of not being able to access SharePoint or otherwise. He did not identify any specific document that was not disclosed which would have been necessary to the performance of his duties. There is a lack of contemporaneous evidence suggesting that there was any difficulty. The evidence which is available demonstrates that the claimant, when he requested specific documents, was sent those documents. 7.16 The claimant’s statement would suggest that he objected to not being giving administrative access.4 That is consistent with the respondent’s evidence that the claimant requested administrator’s rights on several occasions. 7.17 During the hearing the claimant’s position changed. The claimant sought to resile from the position adopted in his statement. The respondent’s reason for not giving administration access is clear and is an answer to any claim. The claimant did not need administrator’s access to do his job, and giving him that access would have compromised the respondent’s business and been inappropriate in accordance with their policies.

[4]Paragraph 16 of his statement. - 24 - 12.8 From April 2021 to January 2022, the claimant was not given access to the wide range of technical portals. Dominic Hughes had access but would ask the claimant to perform tasks which required him to verify that his direct reports were accessing the portal securely. The comparator relied upon is Diganta Mandal. Not in ET1 although claimant had stated it was in paragraph 6 of ET1 (no 7.18 The nature of this allegation became tolerably clear during the hearing. As part of the work undertaken by Bulletproof, they provided a service called target defence. This monitored the RightSpend platform for suspicious activity. Any suspicious activity would lead to an alert which would be forwarded to a portal. This would also generate email alerts. Mr Hughes decided that the initial alerts, through the portal, should be accessed by Mr Diganta Mandel, as he had designed the system and he was in the best position to action any response. It was not necessary to send the initial alert to the claimant. Mr Hughes had overview of any alerts, and he would send notification of any alerts to the claimant. The claimant would then have overview, so that he could perform his duties by checking Mr Mandel had dealt with the problem. 7.19 The claimant’s evidence fails to deal with this matter adequately or at all. He does not explain what is meant by the portal. There is no evidence at all that there was a wide range of technical portals to which he was denied access. The suggestions he could not verify the work of his direct reports is without foundation. Mr Hughes sent specific notification to the claimant and the claimant was required to confirm the problem had been addressed. It follows that he had all the relevant tools to perform his duties. 7.20 It is for the respondent to organise itself in the way it considers most appropriate. The approach the organisation chose was rational and reasonable. In no sense whatsoever was the claimant excluded. We accept the explanation and it is an answer to this claim. 12.9 On 29 September 2021, the pen test caused issues with the respondent's server. Mr Hughes asked the claimant's team member to act on it as he had access to the server. The claimant's access was withheld, and the claimant's team member was unreachable. The comparators relied upon is Ganesh Pandi. Not contained in the ET1 (no amendment, no objection) 7.21 The claimant has given no evidence in support of this allegation. He fails to established that his access was withheld. He fails to establish any treatment capable of being detrimental 12.10 On 30 September 2021, the claimant's team member shared issues with the ServiceChoice service provider with the claimant but he was unable to view this as he did not have access. The claimant had responsibility for this task but could not action it as his access to the server was withheld by Dominic Hughes. - 25 - The comparators relied upon is Diganta Mandal. Not in ET1 although claimant had stated it was in paragraph 6 of ET1 (no amendment, no objection) 7.22 This allegation is not in the claim form and it is not addressed in the claimant’s statement. The claimant has failed to give any adequate or appropriate evidence on this point. 7.23 To the extent that there is detrimental treatment alleged, it appears to be that access to the server was withheld by Mr Hughes. It may be that this is reference to the pen test. It may be that it reference to the portal. It is simply not set out adequately or at all by the claimant. We have considered the pen test and the portal issues above. We found there was no detrimental treatment. 7.24 We can only decide claims which are pleaded. This allegation is not in the claim form. In the draft issues it is so poorly articulated that it cannot be understood, and it is not supported by any evidence. This claim fails. 7.25 We would note that the claimant cannot put the claim as most suits the claimant from time to time. The claim must be pleaded and the respondent must know the case that it is to answer. 12.11 On 7 October 2021, Mr Hughes only shared screenshots of two slides/pages without giving the claimant access to SharePoint. He later shared links to SharePoint that the claimant could not access. The comparator relied upon is everyone else in the business except the claimant. Paragraph 6 of ET1 7.26 This is another allegation which is insufficiently particularised and which cannot be easily understood. The claimant fails to address it in his evidence. It is not addressed in the submissions. 7.27 We accept the respondent’s evidence that the claimant was given access to SharePoint as necessary. There is no suggestion the claimant made requests for specific documents in SharePoint which he did not receive. We accept there may have been problems with individual links. What is clear is that when the claimant raised problems, any response was helpful and almost instantaneous. In no sense whatsoever was it detrimental treatment. It may be that the claimant is complaining about not having administration access, but we have considered this above. This allegation does not demonstrate treatment which is capable of being a detriment. 12.12 On 26 October 2021, the ISO consultant shared documents with the claimant that should have been filed a long time previously. However, the claimant did not have access to the server. On 26 October 2021, the claimant mentioned this to Dominic Hughes and he was granted access to only two files rather than the whole folder as requested. The comparator relied upon is everyone else in the business except the claimant. All ISO auditees had access except the claimant. Paragraph 6 of ET1 (no amendment, no objection) - 26 - 7.28 At 17.5 of his statement, the claimant refers to two documents being user access reviews and information security risk assessment and SoA. He says they were drafted in July 2020 and 1 September 2021. It is unclear why the claimant says they should have been filed previously. It is clear the claimant asked for access and received the two files as requested. It is unclear that he needed them. Nevertheless, access was granted. We do not accept that there is clear evidence that “everyone else in the business” except the claimant had access. There was insufficient evidence to demonstrate that. We accept the respondent’s general position that documents are only shared with those individuals who need to see them. It is unclear what is said to be the detrimental treatment. In any event, we accept the respondent’s explanation. Only relevant documents would be shared. The documents were shared with the claimant when he made requests. There is nothing to suggest that any of that was because of any of the relevant protected characteristics. 7.29 The claimant’s email 6 October 2021 refers to access being denied. Mr Hughes replied stating that was odd, but gave immediate access. There is no evidence of the claimant’s being denied access to the server in this manner or at all. 7.30 We do not accept that all ISO auditees had access except the claimant. This allegation fails. 12.13 On 17 November 2021, the claimant's access to SharePoint was revoked/lost one day before the audit. The claimant reported this to Mr Hughes but was met with no response. The claimant also followed up with a Microsoft Teams message to Mr Hughes but was met with no response. All ISO auditees had access except the claimant. Not contained in the ET1 (no amendment, no 7.31 This is not set out adequately in the claim form. It is not addressed in the claimant’s evidence. The respondent denies that there is any revocation of access to SharePoint on 17 November and we accept the respondent’s evidence on this. This allegation fails. 12.14 On 25 November 2021, the claimant's access to security management of his remit was restricted but all his team members and direct reports had full super-admin access. The claimant was asked to manage and regulate the security access with his team despite not having access himself. As the claimant was not given access to the portal, he was unable to verify if the access was legitimate and had to repeatedly ask Mr Mandal for confirmation. The comparator relied upon is Diganta Mandal. Not contained in the ET1 (no amendment, no 7.32 This is not set out adequately in the claim form. To the extent the claimant argues that all team members and direct reports had administrative access, that is wrong. They did not. We have already considered Mr Mandal’s access to the portal and the reasons for it; we do not need to consider that further. It was appropriate to limit access to the security - 27 - system. It did not prevent the claimant from undertaking his duties, for the reasons given already. This allegation fails. 12.15 On 15 December 2021, Mr Hughes shared a report with the claimant, detailing the items related to his remit, but he did not have access to the Password Policy due to having no access to SharePoint. All ISO auditees had access except the claimant. This specific allegation relating to the Password Policy is not in the ET1 although a general complaint of not being granted access to SharePoint is at paragraph 6 of the ET1 (no amendment, no objection) 7.33 This allegation is not in the claim form. There is nothing about it in the claimant’s statement. The claimant was asked to create a password policy for RightSpend in line with the corporate policy. He did not object to doing this. It was part of his role. To the extent there is a general complaint about access to SharePoint, we have considered that elsewhere. We reject any suggestion that there is evidence that the claimant could not undertake his duties in relation to the creation of a password policy. If there had been difficulties, on the balance of probability, he would have raised them. He did not. This allegation fails. 12.16 During the period 15 – 22 December 2021, the claimant was given artificial deadlines and demands two days prior to his annual leave contrary to what the respondent's auditors had said. The claimant alleges that the certification was already submitted prior to 22 December 2021, but he was emailed during his annual leave when Ganesh Pandi could have assisted the respondent. The respondent wanted the claimant to work during his annual leave. The comparators relied upon are Iain Seers and Dominic Hughes. Paragraph 9 of the 7.34 This concerns Mr Seers’ requirement of the claimant to produce a BCP5 for RightSpend. The claimant was not placed under artificial deadlines. Production of the BCP had been part of his duties since he started his employment. The need to complete this had been flagged after the audit, but the claimant had not dealt with this. The matter was raised again shortly before the claimant’s holiday. It was discussed. There was an exchange of emails. It was made plain the claimant did not have to deal with the matter until his return. 7.35 The suggestion the claimant had already submitted sufficient information is unsustainable. We have noted that the claimant’s contribution was a brief paragraph, which was clearly inadequate. Mr Sears dissatisfaction was justified. 7.36 We accept the respondent’s explanation. The claimant was asked to do a BCP for RightSpend because it was needed and it was within his agreed duties. He had more than adequate time.

[5]Business continuity plan. - 28 - 7.37 We accept the claimant’s evidence that he was on leave from 17 December 2021. Therefore, the contact starting 20 December 2021 was within his holiday. The claimant was a senior member of staff. It is not unusual for senior members of staff to be contacted during holiday. There is nothing to suggest that any senior member of staff was treated differently. There are no facts which we could find that this was an act of discrimination. This allegation fails. 7.38 There is a specific allegation of age discrimination at 15.1 15.1 From November 2021 – September 2022, the shares that were identified to be allotted to the claimant were not promptly registered in his name at Companies House. The comparators relied upon are Dermot Hough, Gehan Talwatte, John Hornby, Tiffany Crow and Dominic Hughes). Paragraph 7 of ET1 7.39 It is wrong to say that the shares were not properly registered in the claimant’s name. They were registered in September 2022. It is difficult to see what is said to be the detrimental treatment. The shares had been supplied to the claimant. He was responsible for the initial delay from April 2021, as he failed to sign the documentation. When he signed it, the shares were his. This was not dependent upon registration. Registration was an administrative task, and it may have been overlooked. In any event, registration was delayed for two other individuals who signed share documentation at a similar time. There is nothing to suggest that the treatment was detrimental. To the extent that it was in some manner unwelcome to the claimant, he was not treated differently to others. There were two other individuals, who were essentially in the same material position, whose registration was equally delayed. The explanation is that if there was a delay, it was an administrative oversight. We accept that explanation. This allegation fails. Harassment 7.40 When considering harassment, the following steps must be taken into account. First, did the alleged treatment occur. Second, are there facts from which it could be decided harassment was the purpose. Third, if harassment was not the purpose, did it have the effect of harassing. Fourth, did the conduct relate to the protected characteristic. The claimant relies on the protected characteristics primarily religion and race. I have also considered age. 7.41 With this in mind, we consider each of the allegations.5.1 The claimant was intentionally prevented from performing his role by Dominic Hughes. Dominic Hughes withheld information from the claimant and refused to share it. The claimant communicated this to Dermot Hough but this conversation was then "leaked" to the CEO, Iain Seers. The claimant was excluded from certain meetings relating to ISO27001 ("ISO") where task ownership was - 29 - mentioned against his name without his knowledge during the period between 5 May 2021 and 16 November 2021. Paragraph 3 of ET1 (no amendment, no 7.42 We have explored the claimant’s role. For the reasons we have already given, he was not prevented from undertaking his role. There is no evidence the respondent withheld information relevant to the claimant’s role. There is no evidence that the respondent failed to share information relevant to his role. The claimant was not excluded from meetings. He was not asked to perform tasks in any inappropriate manner. There is no treatment capable of being harassment. The treatment received did not relate to a protected characteristic. This claim fails.

5.2 From May 2021 to December 2021, the claimant was excluded from the ISO27001 project by Dermot Hough and Iain Seers and replaced by someone else in an unofficial capacity. Paragraph 4 of ET1 (no amendment, no objection) 7.43 The claimant does not address this in his statement. The claimant was not excluded from the ISO compliance project. He was not responsible for the project. It was not within his job remit. He was involved to the extent appropriate to his duties. The treatment neither had the purpose of harassing, nor the effect. The treatment was not related to any protected characteristic.

5.3 During the same period, the claimant was unfairly asked to perform at short notice without being given visibility over the responsibility and tasks. The claimant was excluded from over 20 meetings where task ownership was mentioned against his name without his knowledge for 7 months. Paragraph 4 and 4.1 of ET1 (no amendment, no objection) 7.44 This is a wide-ranging allegation. It is not adequately particularised. It is not adequately dealt with in the claimant’s evidence. It was not adequately put to any of the respondent’s witnesses. We find the claimant was not asked to perform tasks, unreasonably, at short notice. We find there was no evidence that he was not given sufficient visibility over the task for which he was responsible. There is no basis on which we could find the claimant was excluded from any meeting to which he had a legitimate expectation of attendance. The treatment received did not have the purpose of harassing him and it did not have the effect. The treatment did not relate to any protected characteristic.

5.5 On 5 November 2021, Mr Hughes told the claimant he would send an addendum to Code Apogee which the claimant had asked him to send in October 2021. The claimant, having being excluded from the meetings referred to in paragraph 5.1, was later asked by Mr Hughes to 'take - 30 - the lead' on the addendum without being part of those meetings. Not in the ET1 7.45 This allegation is not adequately pleaded. It was not dealt with adequately in the claimant’s evidence. The claimant did not adequately challenge any of the respondent’s witnesses. We have considered the pen test. We have limited information. We find the claimant was kept informed. The claimant knew it was happening. He claimed responsibility for the successful outcome. This treatment did not have the purpose of harassing the claimant and it cannot be said to have had the effect. The treatment did not relate to any protected characteristic. This allegation fails. 5.5 On 5 November 2021, Mr Hughes told the claimant he would send an addendum to Code Apogee which the claimant had asked him to send in October 2021. The claimant, having being excluded from the meetings referred to in paragraph 5.1, was later asked by Mr Hughes to 'take the lead' on the addendum without being part of those meetings. Not in the ET1 (no amendment, no 7.46 This allegation is not in the claim form. The claimant does not give evidence in his statement. We have considered this allegation in the context of direct discrimination. The treatment received by the claimant was not detrimental. The treatment had neither the purpose nor the effect of harassing. It was not related to any protected characteristic.

5.6 The claimant was excluded from the Audit prep meeting on 16 November 2021, despite being one of the auditees. Not in the ET1 (no amendment, no 7.47 the position in relation to the audit preparation meeting of 16 November 2021 has been considered in the context of the direct discrimination claim. This allegation is not in the claim form. The alleged circumstances are not dealt with in the claimant’s statement. The claimant had no expectation of being involved in the meeting on 16 November 2021. The treatment had neither the purpose nor the effect of harassing the claimant. It was not related to a protected characteristic.

5.7 On 25 November 2021, the claimant was asked to action the filled ISO questionnaire from Code Apogee by Mr Hughes on short notice. Not in the ET1 7.48 This allegation is not contained in the claim form. It was not in the claimant’s statement. It was not put to any witness. This appears to concern the security questionnaire. We have considered it above. This was part of the claimant’s legitimate duties. The treatment had neither the purpose nor the effect of harassing the claimant. It did not relate to a protected characteristic. - 31 -

5.8 From June 2021 – January 2022, the claimant reached out to the Board of Directors (namely Dermot Hough (CFO), Iain Seers (CEO) and Gehan Talwatte (Non-Executive Director) via Microsoft Teams and email for assistance in relation to alleged harassment and bullying but his concerns "fell on deaf ears." The claimant also regularly discussed this with Tiffany Crow (Director of Client Services). Paragraph 8 of the ET1 (no amendment, no objection) 7.49 The claimant has given inadequate evidence. Neither the manner in which he alleges he reached out, nor the response he received, is dealt with adequately in the claim form or the witness evidence. 7.50 Prior to 9 April 2021, the claimant indicated to Mr Hough there were some teething problems. There is no suggestion that the problems continued or that Mr Hough failed to respond. The claimant did not reach out to Mr Sears at all. The respondent accepts the claimant may have emailed Gehan Talwatte, a non-executive director, but any conversations were project related. Ms Tiffany Crowe was a director of client services and had no oversight on the claimant’s role. It appears that he had private conversations with her and that she sought to reassure him. She did not know that she was being covertly recorded. In no sense whatsoever did she fail to respond. We have considered the transcripts of the calls with Tiffany Crowe, insofar as the claimant has referred to them. We find they are not supportive of any assertion that the claimant was treated in any manner either because of or related protected characteristics. 7.51 It is unsustanalbe for the claimant to say that he reached out in relation to alleged harassment but his concerns “fell on deaf ears.” There is no evidence on which we could reach those conclusions. We find the treatment had neither the purpose nor the effect of harassment. The treatment did not relate to a protected characteristic.

5.9 Mr. Hough, who was responsible for HR matters, asked the claimant to follow the company's grievance procedures and withdraw his resignation. However, Mr. Hough forwarded every communication from the claimant to Mr. Seers, the person against whom the grievance was made. Mr. Hough then asked Mr. Seers to draft the response and, in some cases, even edited and confirmed the response before sending it back to the claimant. Paragraph 12.5 refers to asking the claimant to follow the Company's grievance procedure. The rest of 5.9 does not appear in the ET1 (no amendment, no objection) 7.52 We have considered the potential grievance procedure. The claimant did not raise a grievance, albeit one was indicated in his letter of resignation. He failed to adequately set out the basis of his grievance at any time. It was reasonable for the respondent to suggest that he follow the grievance procedure. It was the claimant who objected to the respondent’s grievance procedure. The respondent went further than it need to by proposing that it employ an independent HR consultant to hear the grievance. There is evidence that there was some discussion between the respondent’s senior managers and the HR consultant. However, the - 32 - discussions were administrative and in no sense whatsoever support a conclusion that there was an attempt to influence the HR consultant. 7.53 The respondent’s approach to the potential grievance neither had the purpose nor the effect of harassing the claimant. It was not related to any protected characteristic.

5.10 The HR also discussed the grievance with the people who were the subject of the grievance. Then arranged a meeting with these individuals to discuss the grievance raised and terminated all access to limit evidence collection or fair process. Paragraph 12.5 and 12.5.2 of the ET1 (no amendment, no objection) 7.54 we do not accept there is adequate evidence that there was any improper discussion between the HR consultant and any senior manager. This treatment neither had the effect nor the purpose of harassing. It was not related to a protected characteristic.

5.11 The claimant repeatedly informed HR that the grievance process was not independent, and that the individuals against whom the grievance was made could not be involved in conducting or overseeing the grievance procedures. The claimant requested an independent process, but this request was denied. Paragraph 12.6.1 of the ET1 (no amendment, no objection) 7.55 he claimant complains that no independent grievance process was put in place. We do not accept that assertion. An independent process was put in place, albeit the respondent had no obligation to do so. The claimant chose not to engage. He did not send proper details of his grievance. The claimant’s action stopped any grievance proceeding. 7.56 The respondent’s approach did not have the purpose of harassing nor did it have the effect. It was not related to protected characteristic.

5.13 The claimant, after being denied a fair and impartial grievance process by the respondent, suggested that the Board of Directors conduct an independent investigation. However, the Board sided with the CEO, CFO, and HR, the individuals against whom the claimant had a grievance. The Board failed to conduct their own fact-finding and provide an impartial grievance procedure. As a - 33 - result, the alleged individuals were allowed to continue their fraudulent practices. Paragraph 14.3 although there is no reference to the claimant suggesting the Board of Directors conduct an independent investigation. 7.58 This is repetition. For the reasons we have given, the respondents approached the potential grievance was not an act of harassment. Wrongful dismissal 7.59 It is the claimant’s case he resigned because the respondent was in breach of contract. The claimant relied on the implied term of mutual trust and confidence. He stated that there was no breach of an express term of the contract. He essentially relies on the allegations of harassment and/or discrimination as cumulative acts which when taken together led to a breach of the implied term of mutual trust and confidence. 7.60 We find there were no acts of direct discrimination. There were no acts of harassment. As for each of the alleged detrimental acts and the alleged acts of harassment, we have rejected them; we found that the respondent behaved reasonably and appropriately. The emails to the claimant were unfailingly reasonable, supportive, and appropriate. When the claimant indicated that he could not get access to documents, the respondent’s senior managers, particularly Mr Hughes, were helpful and supportive. The respondent was reasonable in denying the claimant administrator status on SharePoint. The respondent’ reasons were rational and appropriate. We find that at no time was the respondent in breach of contract. As the respondent was not in breach of contract, it was not open to the claimant to accept a breach and treat himself as dismissed. It follows that his resignation was not a dismissal. 7.61 The respondent alleges the claimant was in breach of contract. The definition of confidential information in the claimant’s contract was wide. At paragraph 9.3 it referred to goods and services, business methods, know-how, suppliers and customers, and affairs generally. 7.62 Paragraph

9.5.1 of his contract concerns using and disclosing confidential information. He was not permitted to make any recordings of any confidential information. 7.63 Paragraph

9.5.2 forbade the claimant from removing, recording or copying confidential information. 7.64 Paragraph 11.1.2 allowed the respondent to terminate the contract with immediate effect for any serious or persistent or material breach of obligation. 7.65 At the start of his employment, the claimant used his own laptop. This was permitted. He immediately commenced to record every Teams meeting and every conversation. When he received the employer’s laptop, he downloaded, without the employer’s consent, a program called - 34 - “Glean.” This allowed him to record all conversations which went through the computer. He recorded Teams meetings and telephone calls. Those recordings included at least one confidential board meeting. 7.66 The claimant breached his contract in numerous ways. Downloading and using Glean without the respondent’s permission had the effect of covertly recording confidential information. Recording that confidential information was in breach of contract. The fact that the recording was covert may have been a breach of contract in itself. The claimant suggests that the recordings were held on the respondent’s One Drive. The claimant accepts that at some point he downloaded recordings onto his own devices. He suggests that he was justified in doing so, as they formed evidence in this case. We find he was not justified in doing so. If those documents remained on the respondent’s One Drive, they were documents which should have been disclosed during the course of this hearing, and the claimant would have been entitled to them. The fact that his intention was to use the documents in these proceedings did not permit the claimant to circumvent the judicial process of disclosure. His action was a breach of contract. It had the effect of obtaining, and retaining, confidential information in a way which was forbidden by his contract. This was a serious breach and we find it was fundamental. 7.67 The respondent has alleged the claimant was dishonest. It relies on alleged covert recording and the claimant’s alleged destruction of his computer by wiping the operating system. The claimant denies any dishonesty. We do not need to resolve this, as the respondent was not in breach of contract, and the claim for wrongful dismissal fails in any event.

Introduction

[1]This hearing concerned the respondent’s application for costs made on 3 June 2024.

[2]Prior to the hearing, the claimant made an application for my recusal. It is that application which I deal with first. - 1 - Background

[3]The tribunal heard the claims of discrimination, harassment and wrongful dismissal between 22 and 29 February 2024. The judgment was reserved and a written decision, dated 19 April 2024, was sent to the parties.

[4]The respondent made its application for costs on 3 June 2024.

[5]The order 15 May 2025 set directions for this hearing.

[6]On 2 June 2025 the claimant, for the first time, raised the question of apparent bias and sought my recusal. On 5 June 2025, the claimant sought a variation of directions and made a request for my recusal. The basis for the request was unclear.

[7]On 24 June 2025 I gave directions that the claimant should submit a consolidated application detailing all relevant arguments, to be supplied no later than 26 June 2024.

[8]The claimant submitted a consolidated application on 26 June 2025 containing all grounds relied on.

[9]On 4 July 2025, I issued directions for the claimant to clarify matters, which included directions that he provide full details of the alleged facts relied on.

[10]Both parties filed a response. I did not receive the claimant’s response until the hearing, albeit he states it was lodged with the tribunal. The law on recusal

[11]The relevant legal test is set out in Porter v Maghill [2002] 2AC. Lord Hope of Craighead, with the approval of all their Lordships, explained (at para 103): … The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

[12]I have regard to R v Inner West London coroner, ex-parte Dallaglio and another [1994] 4 AER 139. The head note states: (1) Where a decision was impugned on the ground of apparent bias the court seised of the challenge had to consider all the evidence for itself so as to reach its own conclusion as to whether there was a real danger, meaning a real risk or real possibility, of injustice having occurred as a result of bias in the sense that the decision maker, either consciously or not, was predisposed or prejudiced against one parties case for reasons unconnected with the merits of the issue. - 2 -

[13]In a Ansar v Lloyds TSB Bank PLC and others

[2006] EWCA civ 1462

. The Court of Appeal approved the following summary of the principles identified by Burton J in the EAT in the same case: 1. The test to be applied as stated by Lord Hope in Porter v Magill

[2002] AC 357

, at paragraph 103 and recited by Pill LJ in Lodwick v London Borough of Southwark at paragraph 18 in determining bias is: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. 2. If an objection of bias is made, it will be the duty of the chairman to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance: Locabail at paragraph 21. 3. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL ex parte CJL

(1986) 161 CLR 342

at 352, per Mason J, High Court of Australia recited in Locabail at paragraph

[22]4. It is the duty of a judicial officer to hear and determine the cases allocated to him or her by their head of jurisdiction. Subject to certain limited exceptions, a judge should not accede to an unfounded disqualification application: Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd [1991] VSCA 35 recited in Locabail at paragraph 24. 5. The EAT should test the employment tribunal's decision as to recusal and also consider the proceedings before the tribunal as a whole and decide whether a perception of bias had arisen: Pill LJ in Lodwick, at paragraph 18. 6. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without something more found a sustainable objection: Locabail at paragraph 25. 7. Parties cannot assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be shown: Pill LJ in Lodwick above, at paragraph 21, recited by Cox J in Breeze Benton Solicitors (A Partnership) v Weddell

[2004] All ER (D) 225

(Jul) at paragraph 41. 8. Courts and tribunals need to have broad backs, especially in a time when some litigants and their representatives are well aware that to provoke actual or ostensible bias against themselves can achieve what an application for adjournment (or stay) cannot: Sedley LJ in Bennett at paragraph 19. 9. There should be no underestimation of the value, both in the formal English judicial system as well as in the more informal employment tribunal hearings, of the dialogue which frequently takes place between the judge or tribunal and a party or representative. No doubt should be cast on the right of the tribunal, as master of its own procedure, to seek to control prolixity and irrelevancies: Peter Gibson J in Peter Simper & Co Ltd v Cooke

[1986] IRLR 19

EAT at paragraph 17. 10. In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal: Locabail at paragraph 25. 11. Whilst recognising that each case must be carefully considered on its own facts, a real danger of bias might well be thought to arise (Locabail at paragraph 25) if:(a) there were personal friendship or animosity between the judge and any member of the public involved in the case; or - 3 -

(b) the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or

(c) in a case where the credibility of any individual were an issue to be decided by the judge, the judge had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or

(d) on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on their ability to try the issue with an objective judicial mind; or

(e) for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues.'' 14. It follows the judge should seek to understand the grounds for the application, consider the evidence, and reach conclusions. The recusal application 15. The claimant’s application is extensive. It is not necessary for me to quote it in full. I shall set out the broad areas on which he relies. 16. I should note that it is not necessary to refer to the detail of every fact and argument I have taken into consideration. I have had full regard to all the documents, and the complexity of the argument put forward by the claimant. What is needed is to set out sufficient information to demonstrate the basis on which I reached my decision. 17. The consolidated grounds are extensive and discursive. The claimant’s grounds are summarised below. 18. Ground one is my alleged “involvement in all stages of proceedings.” In particular, the claimant alleged that following the final hearing I had directed all correspondence be marked as “FAO judge Hodgson only.” It being his case that there was inappropriate and uninterrupted control which prevented the involvement of any other judge. 19. Ground two is said to be “apparent bias during final hearing.” In support of this, the claimant made a number of factual assertions particular as follows:

a. “EJ Hodgson made a dismissive and disrespectful remark in response to my answers to the respondent’s questioning, stating, “rant is over.”

b. “When I attempted to question Mr Dermot Hough, respondent’s witness regarding Mr. Tim Scott (respondent’s representative), EJ Hodgson intervened and instructed the witness not to respond, stating that doing so could disadvantage him legally. This selectively shielded the respondent’s witness from scrutiny, contrary to the principles of fair examination.” - 4 -

c. “EJ Hodgson required me to elaborate beyond the scope of the case (e.g. how recordings were made), but when I attempted to bring key evidences to light, they were ignored or dismissed with little explanation.”

d. “During the Final Hearing, Employment Judge Hodgson instructed the respondent’s counsel to send documents directly to his email address. In contrast, I was told to send my documents to the respondent’s counsel, who would then forward them to the Judge. This discrepancy in procedure heightened my concern that Judge Hodgson did not maintain an equal footing between the parties. The Judge shared his email address with the respondent’s counsel but not with me, effectively requiring me to rely on the opposing party to submit my documents. Although Tribunal members and a clerk were present, this arrangement raised serious concerns about transparency and equal access to the Tribunal.” 20. Ground three is said to be “procedural imbalance post hearing. The claimant states – After the final hearing, Judge Hodgson directed that all correspondence be marked for his attention only. This directive prevented broader or impartial judicial oversight of applications, including costs. This is highly irregular and has further compounded the appearance of bias. 21. Ground four is said to be “reasonable doubt in impartiality.” This raised a number of broad matters which can be summarised as follows: the respondent had a legal team which disadvantaged him; the case left him with a sense of injustice; he alleged that the respondent’s position had been “consistently supported in a manner that suggests an ongoing favourable treatment; and he alleged I had refused to recuse myself. 22. Ground five is said to me a “potential conflict of interest”. In particular he stated, “I have discovered that there may be potential professional connections or overlap between the respondent's legal representative and Employment Judge Hodgson, particularly given that their careers appear to have started around the same time and within similar legal circles.”

[23]I considered that there were aspects of the claimant’s position that remained unclear and I sought further clarification by directions of 4 July 2025 included the following: 1. The claimant should identify and send to the tribunal any correspondence in which the words “FAO judge Hodgson only” appear. 2. The claimant makes a number of factual assertions in support of his allegations of apparent bias. The claimant should provide the following details:(i) in respect of the allegation that the words “rant is over” were used. The claimant should identify who used the words, the date and the time. He should set out any alleged context. The claimant should also confirm whether he has sought to obtain, or has obtained, a transcript of the relevant part of the hearing. - 5 -

(ii) With reference to the alleged intervention concerning questions to Mr Dermot Hough, the claimant should identify the time and date of the alleged intervention, and set out any context. The claimant should also confirm whether he has sought to obtain, or has obtained, a transcript the relevant part of the hearing.

(iii) The claimant alleges he was required to elaborate beyond the scope of his case. He should provide details as what was the alleged elaboration. He should set out the relevant date and time. The claimant should also confirm whether he has sought to obtain, or has obtained, a transcript the relevant part of the hearing.

(iv) The claimant alleges that “key evidences” were “ignored or dismissed” the claimant should provide a full explanation, to include, if relevant, the date and time of the alleged ignoring or dismissal. The claimant should also confirm whether he has sought to obtain, or has obtained, a transcript the relevant part of the hearing.

(v) In relation to the alleged instruction to provide documents directly to the judge’s email address, the claimant should state the date and time of the alleged instruction. The claimant should also confirm whether he has sought to obtain, or has obtained, a transcript of the relevant part of the hearing. 3. In relation to the claimant’s allegation that there may be “potential professional connections or overlap between the respondent’s legal representative and Employment judge Hodgson.” The claimant should provide full details of who is said to be the legal representative, what is said to be the overlap. At present, there is insufficient information to decide an application for recusal. The hearing listed for 8 July 2024 will proceed, unless the parties are notified otherwise. If the application is not resolved before the hearing, it will be considered at the hearing. The respondent should endeavour to produce a bundle of relevant documents as a pdf which should be supplied to the claimant and made available to the tribunal.”

the hearing.

[24]The respondent sent its response on 7 July 2025. I received the claimant’s response at the hearing. Albeit it appears to have been sent to the tribunal on 7 July 2025.

[25]It is necessary to consider the relevant evidence and to reach conclusions.

[26]The claimant’s application asserted a number of allegations of inappropriate treatment in the original hearing. The hearing was recorded. I asked the claimant to clarify when each alleged incident occurred, as it may have been possible to review the recording. I also asked the claimant to confirm if he had obtained any transcript. I asked the respondent to confirm its account of the facts.

[27]The recording is the definitive record of the liability hearing. The claimant has primary responsibility to obtain the relevant evidence. However, it may be appropriate to review the recordings if that can be done - 6 - reasonably and proportionately. Listening to the entirety of the proceedings may not be proportionate.

[28]I will deal with each ground in turn and set out those facts which I have found on the available evidence. I will consider whether recusal would be appropriate in relation to any ground, or in relation to the grounds as a whole.

[29]Ground one - during this hearing, the claimant initially identified an email of 9 October 2024 as including the words “FAO judge Hodgson only.” Having considered his further submissions of 7 July, and having discussed the matter with the claimant, he conceded that no document was marked “FAO judge Hodgson only.”

[30]It is right that I gave instructions to the parties to mark their correspondence for my attention. I at no time directed the use of the word “only.”

[31]When parties respond to orders or send correspondence, there is frequently delay in that correspondence reaching the judge who is most appropriate to make the decision. On occasions, the correspondence is not sent to any judge. On occasions, correspondence is sent to a judge who has not been involved in the matter previously. To assist the administration, it may be helpful for correspondence be marked for the judge whose is appropriate to make the decision. When there are ongoing applications, and a particular matter is being handled by a particular judge, it is generally appropriate for that judge to continue making case management decisions. This assists consistency and efficiency. In this case, there was an ongoing application for costs, arising out of a hearing which I chaired, and in principle I was the judge best placed to make the relevant decision. It is therefore appropriate that I should continue to case manage the relevant directions.

[32]This did not preclude the case being allocated to another judge or prevent any other judge making a decision to any time. The word “only” was never included. The purpose of marking correspondences was to reduce the amount of time it takes for the correspondence to reach the judge who was most appropriate to deal with case management.

[33]The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

[34]The claimant’s allegation is essentially one of my attempting to exclude other judges by directing the inclusion of the word “only” on my correspondence. I did not give that direction. The correspondence did not include the word “only.” A fair-minded and informed observer would understand the importance of clear markings to assist with the efficient allocation and response to correspondence. It does not give rise to a conclusion that there was a real possibility the judge was biased. - 7 -

[35]Ground two- the claimant alleges that during the hearing I pejoratively used the term “rant is over.” In relation to his communication. He was unable to say when this occurred, or set out the context. He indicated it may have happened at the end of his evidence, or at the end of the evidence of Mr Hough. He did not obtain a transcript.

[36]The respondents letter of 7 July 2025 stated - “The respondent has no record of the Judge stating ‘rant is over’ during the claimant’s cross examination as alleged or at all. The respondent has reviewed its attendance note of the hearing and has no record of this conversation taking place. The claimant was directed at various points during his cross examination by the respondent’s Counsel to answer the specific questions put to him, and during his cross examination of the respondent’s witnesses, he was directed by the Judge to ensure he was asking relevant questions of the witnesses. The respondent can share a copy of its attendance note with the Tribunal if it should assist.”

[37]It is not reasonably practicable for me to check the entire recording. It would involve an inappropriate and disproportionate use of judicial time. Using a term such as “rant is over” may well be pejorative and is likely to be inappropriate language in a judicial context. In brief, it would be rude. It is not language I would use in the manner suggested. I did not and would not use that term in the manner suggested.

[38]With regard to the interaction with Mr Dermot Howell, the respondent stated as follows: “In respect of the claimant’s assertion that Employment Judge Hodgson directed Mr Hough not to respond to a question posed by the claimant during cross examination, the respondent has reviewed its attendance note and confirms as follows: the claimant had asked Mr Dermot Hough whether he had sought legal advice regarding the response to his DSAR (which for the avoidance of doubt, was submitted after the claimant’s resignation). The respondent’s Counsel interjected to advise Mr Hough that this matter was legal advice privileged, and the intention of the respondent was not to waive this privilege. The claimant went on to question Mr Hough regarding settlement negotiations in the case via the services of ACAS which again the respondent objected to. Employment Judge Hodgson directed the claimant to refrain from asking about these matters during the hearing as they were without prejudice and/ or legal advice privileged. The respondent submits that this was an entirely reasonable direction.”

[39]The claimant failed to set out adequate details of what he says were the inappropriate interventions. A fair-minded and informed observer would accept that it is necessary to control proceedings and to give directions about what is relevant. The respondent’s account accords with my own recollection. I have not reviewed the original recording. I would have considered doing so had the time and date of any alleged inappropriate conduct been identified. I am satisfied that the account set out by the respondent is accurate, and my conduct was consistent with appropriate case management. - 8 -

[40]With regard to the allegation that I required the claimant to over elaborate on the scope of his case I should note the respondent says the following: “The respondent submits that the claimant was required to respond to Employment Judge Hodgson’s queries regarding how he had made covert recordings during his employment. This formed part of the cross examination of the claimant and was entirely relevant to the claim. The claimant relied on these covert recordings to support his claims of discrimination. The respondent had argued that the existence of the covert recordings was a breach of the claimant’s contract of employment.”

[41]I should note that I dealt with the covert recordings in the tribunal’s decision.

[42]The claimant alleged that the covert recordings were relevant. The claimant failed to set out what was my alleged conduct which was said to be inappropriate, or why this went beyond the scope of legitimate management of the issues having regard to the relevance of the evidence. It appears to me the claimant describes no more than legitimate and appropriate case management.

[43]The claimant refers to key evidence is being ignored or dismissed. He does not elaborate adequately or at all. This appears to be a challenge to the liability decision itself. However, I understand the claimant has not appealed the liability decision. Frequently, parties alleges a tribunal has either ignored evidence, given evidence too little weight, or misinterpreted evidence. That appears to be the nature of this complaint. A fair minded informed observer would understand that such challenges are frequent and absent more, it would not lead to a conclusion that there was a real possibility of bias.

[44]As for the instructions to provide documents to the judge’s email address, the respondent says the following: “The respondent submits that the respondent’s Counsel was instructed to send both parties’ written submissions to Employment Judge Hodgson’s email address. Employment Judge Hodgson had directed the parties to exchange their submissions with each other. The respondent provided its submissions to the claimant on 27 February 2024 at 07:53 and the claimant provided his in turn at 08:52. Both sets of submissions were then sent to Employment Judge Hodgson’s email address by the respondent’s Counsel to ensure that he received them promptly before the hearing. The respondent understands that the Judge’s email address was shared with the respondent’s Counsel to ensure it remained private during the proceedings. The respondent’s representative does not have a record of the email address and did not send the submissions to the Judge directly – this was done by the respondent’s Counsel. There were occasions during the hearing, when correspondence was sent to the Tribunal and the Tribunal Clerk, Hitesh Patel marked for the attention of Employment Judge Hodgson. The respondent understands that this was to ensure that the correspondence was picked up by the Tribunal clerks promptly and then forwarded to the Judge to avoid delay during the hearing. For example, the claimant and respondent sent their supplemental - 9 - submissions to the Tribunal clerk and London Central ET inbox marked for the attention of Employment Judge Hodgson on 27 February 2024.”

[45]During an in-person hearing, if documents are submitted, they are handed up to the tribunal. The parties are expected to bring printed copies.

[46]There may be difficulties when receiving documents in electronic form, particularly during a video hearing. Frequently, parties make applications, or seek to submit further documents.

[47]Electronic communications must normally be processed by the administration. During the course of a hearing, if documents are sent to a central inbox, there is some form of triage and this leads to delay. It is not unusual for emails crucial to the management of a case to be received from the administration long after the case is finished. That is unsatisfactory.

[48]One way of avoiding this, is to ensure the documents are sent to the clerk who is nominated to deal with the case. However, this may also lead to delay. Much may depend on the duties, other commitments, and work patterns of the clerk.

[49]There may be occasions when the receipt of documents is time critical. In those circumstances, it may be appropriate to allow documents be sent directly to the judge. However, a judge should exercise caution. It is important that the judge is not compromised by receiving unsolicited arguments of submissions from a party that seeks to exclude the other.

[50]Those who are legally qualified have a duty to the tribunal and are constrained by their professional ethics. Litigants in person are not so constrained and may, inadvertently, send inappropriate documentation.

[51]In this case, it was necessary to receive submissions from the parties. The solution adopted was discussed fully with the parties, the principles I have set out above were made plain. There are occasions when I may give a direct email address to a litigant in person. However, those are rare. My experience is litigants in person may fail to observe appropriate boundaries which may cause difficulty.

[52]At all times I directed that all correspondence must be sent to the tribunal. However, it could be copied to the clerk. In relation to the submissions, in order to ensure that I received only those documents which were appropriate, I asked the claimant to forward all documents he sent to the tribunal to the respondent. I asked the respondent coordinate the forwarding of all documents to me, as well as to the tribunal. This was to ensure protection to both parties and to ensure that the correspondence was appropriately lodged with the tribunal. Asking the respondent to function as a post box in this manner I consider to be reasonable and pragmatic. This was important for receipt of the submissions as they were - 10 - time critical. I do not accept that a fair-minded and informed observer would consider this to demonstrate any real possibility of bias.

[53]Ground three - I don’t consider this ground adds anything to those which are gone before.

[54]Ground four the factual basis for this allegation remains unclear. The fact the claimant was a litigant in person is not sufficient, nor is the fact that the respondent was represented. The claimant’s sense of injustice does not assist. There are no adequate facts identified in support of the assertion that I behaved in a favourable way to the respondent. There was no application in the original hearing for my recusal. The application was made in June 2025. The decision to refuse the application was made at this hearing after hearing all arguments and the reasons were reserved to be given in writing.

[55]Ground five - during the hearing, the claimant alleged that there was “a potential overlap and professional histories” between myself and Mr Tim Scott, who I understand is a solicitor. The height of the claimant submission was that there was some connection in relation to working n in Liverpool. I presume Mr Scott is a solicitor. The reality is I do not know who Mr Scott is. There is no overlap, as far as I am aware, in our professional lives which goes beyond the scope of this case.

[56]I have considered each of the grounds individually. I have also considered them collectively.

[57]I find this a fair-minded and informed observer would not consider there was a real possibility that I was biased.

[58]I should consider actual bias. I have no basis for believing that I am in fact bias. The claimant stated that he did not allege actual bias.

[59]I should deal with one further matter. During the correspondence, the claimant indicated the fact he had made a recusal application could lead to a perception of bias. I presume the logic is that, in some manner I would be offended and would retaliate. In situations where bias is alleged, a judge should be very careful not to allow a party to, effectively, remove the judge who is otherwise suitable to hear the case. There are occasions when parties appeal decisions, or accuse a judge of bias. The judge must remain impartial. Judges must have “broad backs.”

[60]I am satisfied that a fair-minded informed observer would accept that I have considered the matter carefully, and I have given appropriate reasons for not recusing myself. I am satisfied that a fair-minded and informed observer would see nothing in the handling of the application which was inappropriate, or would lead to a real possibility that I was biased and unsuitable to deal with the costs hearing.

[61]I now go and consider the application for costs. - 11 - The costs application

[62]The liability judgment in this case, dated 19 April 2024, was sent to the parties on 8 May 2024. The respondent sent an application for costs on 3 June 2024.

[63]The application for costs was made on the following grounds(a) the complaints had no reasonable prospects of success pursuant to rule 74(2)(b); and/or

(b) the claimant (hereinafter ‘C’) had acted vexatiously, abusively, disruptively or otherwise unreasonably in the way that the proceedings, or part of it, have been conducted pursuant to Rule 74(2)(a).1

[64]I ordered clarification of the application by way of skeleton argument. The skeleton argument identifies the basis on which costs are sought the relevant parts read as follows: No reasonable prospects of success Failure to establish the facts 16. Every single one of C’s complaints before the Tribunal failed. As the Tribunal expressly observed during their judgement many of C’s allegations failed on the facts. The Tribunal will note by way of example the following paragraphs of the Reasons which demonstrate this point: Paragraph 5.14, “the Claimant failed at all times to identify those meetings he was excluded from. There is no credible evidence that he was excluded from any meeting.” Paragraph 5.33, “the Claimant has given contradictory and incomplete evidence”. Paragraphs 7.3 -7.9, "the Claimant fail[ed] to establish what the alleged detrimental treatment was or that the alleged detrimental treatment occurred." Paragraph 7.19 "the Claimant's evidence fails to deal with this matter adequately or at all." Paragraph 7.21 "the Claimant has given no evidence in support of this allegation." Paragraph 7.22 "the Claimant has failed to give any adequate or appropriate evidence on this point." Paragraph 7.49 "the Claimant has given inadequate evidence. Neither the manner in which he alleges he reached out, nor the response he received is dealt with adequately in the claim form or witness evidence." Despite the extensive time, cost and Tribunal resources invested in clarifying the issues, C continued to pursue factual allegations which were plainly incorrect and bound to fail. Indeed, the Tribunal observed at paragraph 5.13 of its reasons that the Claimant had “…provided limited evidence, and in relation to some of the matters raised, no evidence at all.” Numerous complaints pursued by C were not addressed in his witness statement. Moreover, C repeatedly failed to establish he was in materially the same circumstances as the comparators he relied upon (see for 1 It is convenient to include references to the current Employment Tribunal Procedure Rules 2024. - 12 - example paragraph 7.13). maintains that the absence or limited evidence adduced by C to support many of his complaints strong evidence that C knew or at least ought to have known from the outset that those complaints had no reasonable prospects of success. Attempt to add allegations outside the scope of the claim Paragraph 2.10 of the judgement records that the Claimant sought to add numerous allegations to the list of issues which did not form part of the claim in the absence of an application to amend. Given these matters were not part of his claim, C must have known or indeed ought to have known there was no reasonable prospect of those complaints being upheld. Failure to establish causation In any complaint of disability discrimination or detriment the reason for the treatment complained of will be determinative of the issue of whether there has been any unlawful discrimination. It is for C to adduce primary evidence from which the necessary inferences may be drawn (section 136 EA 2010). …25. C’s claim amounted to nothing more than an assertion of discrimination without any pleaded basis for a conclusion that the acts complained of relate to his protected characteristics. C advanced no evidence to demonstrate that race, religion or age were relevant factor in any of the acts complained of. This was an issue which was specifically identified to C in R’s costs warning letter and further correspondence.

26. Even after making allowances for C’s lack of experience and the fact he was unrepresented, C ought to have known, had he gone about the matter sensibly, that his Equality Act claims were bound to fail. Failure to establish repudiatory breach of contract

27. R submits that C had no reasonable grounds to believe that his complaint was likely to be successful. To the contrary, C knew or at the very least ought to have known, had he gone about the matter sensibly, that his complaint had no reasonable prospect of success. The wrongful dismissal complaint relied upon his complaints of direct discrimination and harassment, which for the reasons already highlighted, had no reasonable prospect of success.

28. Additionally, having already repeatedly acted in fundamental breach of contract as the Tribunal found at paragraphs 7.61 – 7.66, C ought to have known his complaint of wrongful dismissal could not have reasonable prospects of success (Palmeri and ors v Charles Stanley and Co Ltd

[2021] IRLR 563

, QBD). For the reasons set out above the complaint was without any merit to the extent that it did not leave the starting post. Unreasonable Conduct Pursuit of unmeritorious complaint

29. R draws the Tribunal’s attention to its costs warnings letter sent on 3rd November 2023. C has been put on notice that R considered his complaints to be entirely without merit. This letter set out in detail why C’s complaints would fail and offered C £5,000 to settle on a commercial basis. Despite this, having commenced proceedings which were fundamentally flawed, C pursued those proceedings, which he knew were bound to fail, - 13 - and in doing so acted unreasonably. The content of the letter also demonstrated an entirely unreasonable approach to settlement negotiations on C’s part. As a result of C’s failure to properly engage with the contentions in the costs warning letter the proceedings continued unnecessary increasing the costs incurred by R. Manufacturing claims

30. C commenced employment in March 2021 and started covertly gathered documents early as April 2021. Whilst that conduct was not in the course of these proceedings, the fact of this behaviour is clear evidence that C commenced proceedings on the basis of manufactured claims. R submits this is further supported by the complete lack of evidence to support C’s contentions Furthermore, in pursuing claims in reliance of those manufactured claims C plainly acted vexatious within the Disclosure

31. During the course of the proceedings, C disclosed 78 transcripts of covert recordings, which resulted in considerable time and expense in reviewing the transcripts and subsequent correspondence. R repeatedly attempted to clarify their relevance without success. C failed to engage in the issue of relevance putting R to further expense. Despite the expense caused by Claimant - a result of this disclosure, C only relied upon 2 of the 78 transcripts disclosed. As R had earlier maintained, they were entirely irrelevant.

32. Additionally, C provided in excess of 700 pages of disclosure which R did not consider relevant to his claims including screenshots of Microsoft calendars and teams chats. R made attempts to clarify their relevance, but this correspondence was not effectively engaged with by C. He failed to give any adequate explanation for their relevance but insisted that the documents should be added to the bundle in their entirety. Similarly, C provides a supplementary bundle with his witness statement but made little reference to it. R maintains C’s conduct in relation to the disclosure of documents was calculated to be obstructive and was plainly unreasonable.

[65]At the start of hearing I checked I had all relevant documents. The respondent filed a bundle all the relevant documents, including the judgment and the application. In addition it filed a skeleton argument.

[66]In addition to the general correspondence, the claimant also provided a witness statement, a statement of means, and supporting documentation. The law on costs

[67]Rule 74 Employment Tribunal Procedure Rules 2024 , insofar as it is applicable, states: 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. - 14 - (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. (4) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal must order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a) the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing, and (b) the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment.

[68]The amount of a cost order is addressed by rule 76. 76.—(1) A costs order may order the paying party to pay—(a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;

(b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998(33), or by the Tribunal applying the same principles; …

(c) another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing;

(d) an amount agreed between the paying party and the receiving party in respect of the receiving party’s costs. (2) Where the costs order includes an amount in respect of fees charged by a lay representative for the purposes of the calculation of the order, the hourly rate applicable for the fees of the lay representative must not exceed the rate under rule 77(2) (the amount of a preparation time order). (3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000.

[69]The word “may” confirms that making the order is discretionary. However, the tribunal shall consider exercising that discretion in certain circumstances. The circumstances are often referred to as the threshold test or the gateway. - 15 -

[70]The threshold test is met in a number of circumstances which include: if either a party, or a party’s representative, acts unreasonably in bringing or conducting proceedings (rule 74(2)(a)); and if the claim had no reasonable prospect of success (rule 74(2)(b).

[71]There are three broad stages to a tribunal’s consideration of a costs application. First, is whether the threshold for making a costs order under has been established; second, is whether it is appropriate, in all the circumstances, to make a costs order (i.e. the exercise of its discretion); and third, is what amount of costs should be payable.

[72]Once the threshold test has been met, the tribunal must consider the exercise of its discretion. Discretion will result in a tribunal making a number of decisions which can include the following: should costs be awarded at all; should the costs be awarded for a period; should the costs be limited to a percentage; and should the costs be capped. The order can be tailored to suit the circumstances.

[73]In exercising its discretion, the tribunal should have regard to all of the relevant circumstances. It is not possible to produce a definitive list of the matters the tribunal should take into account.

[74]I should be cautious about the citation of authorities on costs, albeit broad principles can be distilled from the relevant authorities.

[75]I should not adopt an over analytical approach to the exercise of a broad discretion. The vital point is to look at the whole picture and ask whether there has been unreasonable conduct in the bringing and conducting of the case. In so doing, we should consider what was unreasonable about the conduct and what effect it had. See Yerrakalva v Barnsley MBC

[2012] ICR 420

LJ Mummery said:39. I begin with some words of caution, first about the citation and value of authorities on costs questions and, secondly, about the dangers of adopting an over-analytical approach to the exercise of a broad discretion.

40. The actual words of Rule 40 are clear enough to be applied without the need to add layers of interpretation, which may themselves be open to differing interpretations. Unfortunately, the leading judgment in McPherson delivered by me has created some confusion in the ET, EAT and in this court. I say "unfortunately" because it was never my intention to re-write the rule, or to add a gloss to it, either by disregarding questions of causation or by requiring the ET to dissect a case in detail and compartmentalise the relevant conduct under separate headings, such as "nature" "gravity" and "effect." Perhaps I should have said less and simply kept to the actual words of the rule.

41. 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. The main thrust of the - 16 - passages cited above from my judgment in Mc Pherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.

[76]I must recognise the difficulties faced by litigants in person. The threshold test is the same whether parties are represented or not, but the tribunal should not judge a litigant in person by the same standards as it would a professional representative. Lay people may lack the objectivity assumed in a professional adviser, and that is a relevant consideration when exercising discretion.

[77]In identifying whether the threshold for ordering costs is met in any case, it is necessary to consider the appropriate approach.

[78]In relation to r. 74(2)(b), a tribunal should look at what a party knew, or ought to have known, had it gone about the matter sensibly: Cartiers Superfoods Ltd v Laws

[1978] IRLR 315

, per Phillips J. This point was reiterated in Radia v Jefferies International Ltd

[2020] IRLR431

. HHJ Auerbach stated at par 65, in the context of considering whether a claimant should have known at the outset a claim had no reasonable prosect of success: 65. … [The tribunal] should first, at stage 1, consider whether that was, objectively, the position, when the claim was begun. If so, then at stage 2 the Tribunal will usually need to consider whether, at that time, the complainant knew this to be the case, or at least reasonably ought to have known it. When considering these questions, the tribunal must be careful not to be influenced by the hindsight of taking account of things that were not, and could not have reasonably been, known at the start of the litigation. However, it may have regard to any evidence or information that is available to it when it considers these questions, and which casts light on what was, or could reasonably, have been known, at the start of the litigation.

[79]When considering what a party should have reasonably known at a particular point in time, I should exercise caution. I have regard to the comments of Sir Hugh Griffiths in ET Marler v Robertson

1974 ICR 72

. 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 combatants once they took up arms.

[80]When considering whether a party should reasonably have realised there was conclusive opposition to that party's case, I may consider if there were clear statements setting out that opposition. Those statements may appear in the response or claim form, correspondence, and cost warning letters. - 17 -

[81]I can consider how a party has pursued a matter. I can have regard to Beynon v Scadden

[1999] IRLR 700

, EAT. I would note the following from Justice Lindsay. A party who, despite having had an apparently conclusive opposition to his case made plain to him, persists with the case down to the hearing in the "Micawberish" hope that something might turn up and yet who does not even take such steps open to him to see whether anything is likely to turn up, runs a risk, when nothing does turn up, that he will be regarded as having been at least unreasonable in the conduct of his litigation.

[82]The threshold may be met if a party acts vexatiously in bringing a claim or in the conduct of the claim. In ET Marler v Robertson

[1974] ICR 72

at 76 Sir Hugh Griffiths stated: If an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously, and likewise abuses the procedure. In such cases the tribunal may and doubtless usually will award costs against the employee …

[83]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 proceeding 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.” Per Lord Bingham in AG v. Barker [2000] 2 FCR 1, para 19.

[84]The essential difference between vexatious and unreasonable conduct is that the party concerned need not be aware that his claim has no reasonable prospect of success in order for it to be misconceived. But if a party pursues a claim knowing it has no reasonable prospect of success, or depends on false evidence, or pursues the claim out of malice towards the other party, or for some other ulterior reason, his conduct may be found to be vexatious or unreasonable. I observe not all unreasonable conduct will be vexatious, but it is likely that vexatious conduct will be unreasonable.

[85]As noted above, I should be cautious about the citation of authorities. The case law does identify specific matters which may be relevant to the exercise of discretion, particularly when considering if there has been unreasonable conduct in bringing or pursuing the claims of the

[86]As it may affect the ability to analyse appropriately and reach objective decisions, Ill-health may be a factor. - 18 -

[87]Where evidence turns out to be false, it may be appropriate to consider whether the evidence was advanced dishonestly, particularly if it concerns a central allegation. However, a lie, even about an essential allegation, will not necessarily lead to an award of costs.

[88]It may be appropriate to consider a party’s reason for bringing a claim. This may be particularly relevant where there are allegations of vexatious behaviour (see above).

[89]The manner of proceedings should not be limited to questions of vexation; conduct that causes disruption, or prolongs the claim may be relevant. This is part of the general consideration identified in Yerrakalva.

[90]The tribunal should consider each claim. It cannot be assumed that if one claim had no reasonable prospect of success or was brought or pursued unreasonably that the same can be said of a different claim. The ability to pay

[91]Rule 82 Employment Tribunal Procedure Rules 2024 expressly provides that the tribunal may have regard to a paying party's ability to pay. 82. In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.

[92]The tribunal is not obliged to restrict the order to one the paying party could pay in Arrowsmith v Nottingham Trent University

2012 ICR 159

at paragraph 37 Lord Justice Reimer said the following. 37. There remains the subsidiary question as to the quantum of the award it made, which was £3,000. In arriving at that figure, the ET had regard to Ms Arrowsmith’s means, although under rule 41(2) it was not in fact obliged to do so. Its consideration of those means revealed that Ms Arrowsmith’s ability to pay was apparently extremely limited, as the ET explained, and the ET had regard to that by making an order for the payment of a sum that, in comparison with the likely amount of Nottingham’s costs that it would recover on an assessment, was probably little more than a token contribution, albeit that Ms Arrowsmith may not see it like that. The fact that her ability to pay was so limited did not, however, require the ET to assess a sum that was confined to an amount that she could pay. Her circumstances may well improve and no doubt she hopes that they will.

[93]In Vaughan v London Borough of Lewisham UKEAT 0533/12 the EAT also reiterated the tribunal was not obliged to have regard to the ability to pay at all.

[94]Simler J, as she was, and sitting in the EAT in Chadburn-v-Doncaster NHS [2015]

UKEAT/0259/14/LA

(Simler J) said. 10(v) …However, there must be “a realistic prospect that the - 19 - Appellant might at some point in the future be able to afford to pay”; see Arrowsmith v Nottingham Trent University

[2012] ICR 159

and Vaughan v London Borough of Lewisham

[2013] IRLR 713

[28]. In both cases awards were made that were of significantly higher sums than the paying party was able to pay. In both cases the courts held that even an extremely limited ability to pay did not require the Tribunal to assess a sum that was confined to an amount that the paying party could pay.”

[95]I should note that paragraph 37 Arrowsmith makes it clear that the tribunal was not obliged to have any regard to the means to pay. It is clear that even if the tribunal has regards to the means to pay, it is not necessary to restrict the amount to that that which a claimant could pay. I do not read paragraph 37 as indicating that there must be a finding that there is some likelihood of claimant’s means improving, such that there may be some prospect of payment, as a condition of making an order or that the order should be tailored to a hypothetical improvement of circumstance.

[96]It may be desirable to consider means, and the tribunal should give reasons for why it has, or has not, taken means into account. The tribunal should set out its findings about ability to pay.

[97]Costs are always compensatory; they are never punitive.

[98]The Court of Appeal in Kuwait v Al-Tarkait

[2021] ICR 718

confirmed the tribunal may make a order for costs that reflects a claimant’s ability to pay and may place a cap on the level of costs that can be recovered (see paragraphs 25 -26).

Conclusions

[99]I should first consider the threshold question.

[100]I start by considering whether the complaints had no reasonable prospect of success.

[101]Paragraph 16 of the skeleton argument, set out above, identifies a number of paragraphs from the liability judgment that highlight the failure to identify allegations adequately, and the failure to give evidence that relevant treatment occurred at all.

[102]The claimant brought numerous allegations. There are at least 17 separate allegations of direct discrimination. It is difficult to be definitive because many of the allegations are unclear and imprecise and many suggest more than one allegation. Those allegations are far-reaching and cover a period from at least April 2021 to the claimant’s resignation on 6 January 2022.

[103]In addition, he brought numerous allegations of harassment. There are at least 13 separate allegations. Again they are far reaching and cover an extensive period. - 20 -

[104]In addition, the claimant alleged wrongful dismissal, which was based on an alleged breach of mutual trust and confidence arising at the treatment he received.

[105]No claim was successful.

[106]When considering reasonable prospect of success, it is necessary to bear in mind that I must judge it on the basis of what the claimant knew or ought reasonably to have known had he gone about matters reasonably at the start. This should not to be judged for the benefit of hindsight. What may be clear to the parties now, may not have been clear when the litigation commenced.

[107]During the course of the hearing, a claimant may be presented with conclusive evidence, which the claimant could not have been aware of at the time the claim started. Therefore, it is appropriate to have regard to the evidence that he had in mind, or should have had in mind when commencing proceedings. In considering what he should have known, it may be appropriate to consider what was set out in the claim form, what was in the contemporaneous documentation, and what he is revealed to have known having regard to the evidence placed before the tribunal at the liability hearing. I have all those matters in mind.

[108]It is not necessary to set out my conclusions on each of the allegations. I have considered each of them but it may be helpful to set out some general principles and to give some examples.

[109]To succeed in a claim for direct discrimination or a claim for harassment, it is necessary to establish that the treatment complained of occurred. It is for the claimant to establish the treatment occurred. The burden is on him. When it is established that the treatment occurred, it is then that the burden of proof is considered.

[110]Whether treatment occurred can be a complex question. For example an allegation that an individual has been denied access to some form of training or access to a system may involve asking whether there was a reasonable expectation, and if so the manner in which the refusal occurred. Nevertheless, if the claimant believes that there has been such mistreatment, he should be able to say why and when he should have been given the training or the access, what steps he took to obtain it, and how and when such access was denied. Broadly, the claimant should be expected to advance evidence establishing the grounds for his belief that he should have been treated in a particular way, and grounds for his belief that he was not.

[111]The allegations in this case fail for a number of broad reasons. Many failed because the claimant failed to give evidence, or any credible evidence, that the treatment occurred at all. Some failed because the allegations were so imprecise, and unsupported, that the alleged - 21 - treatment could not be established at all. It follows that many allegations failed at the first stage. I do not propose to set out large sections of the original liability decision. I will summarise the position. For a detailed understanding, it will be necessary to cross read refence the liability decision. For many of the allegations, no evidence was given at all.

[112]I have considered the allegations carefully. Many allegations failed either because the relevant allegation is not properly particularised, or the claimant gave no or no adequate evidence of the alleged treatment. Many of them were simply not addressed in the statement at all. They include these allegations: 12.1, 12.2, 12.3, 12.7, 12.9, 12.10, 12.11, 12.13, 12.14, 12.15, 5.2, 5.3, 5.5, 5.6, 5.7, 5.8, and 5.11.

[113]When considering whether the claimant ought to have reasonably known there was no reasonable prospect of success, it is relevant to have regard to the evidence he intended to bring. When no evidence is presented, or the evidence that is presented is inadequate, or the allegations set out are imprecise, it may be difficult to escape the conclusion that the claimant ought to have known there was no reasonable prospect of success. That is the conclusion I reached in relation to each of those claims set out above.

[114]I should give some brief examples. Allegations 12.11 is concerned with access to SharePoint. However, the claim was insufficiently particularised, and he did not address it in his evidence. He did not address it in his submissions (see 7.26 of the liability decision).

[115]Allegations 12.9 concerns a stress test (pen test) the claimant asserted that he had been excluded in some manner. However, he gave no evidence in support. He fails to establish any treatment occurred at all (see 7.21 of the liability decision). As regards the pen test, the contemporaneous evidence suggested that the claimant not only knew, and was involved, but took credit for it (see 7.5 of the liability decision). I do not need to give any further examples.

[116]It is clear that there are numerous claims where there is clear evidence that there was no reasonable prospect of success, and the claimant ought to have known it.

[117]There are some claims for which evidence was presented, and where the basic treatment is established. In those circumstances, it is necessary to consider whether there was any evidence which could lead to a conclusion that there was either discriminatory treatment or harassment. A number of allegations fall into that category including 12.6, 12.8, 12.16, 15.1, 5.1, and 5.11.

[118]When considering the prospect of success, it is necessary to consider what evidence the claimant should be expected to bring, and what he could reasonably have known about the respondent’s explanation at the time he brought the claim. - 22 -

[119]I considered each of the allegations and concluded that the claimant ought reasonably to have known that there was no evidence in support of his allegation that there is discrimination. Moreover, for each allegations he ought to have known that the respondent had a good explanation, which in no sense whatsoever was discriminatory treatment. Moreover, he ought to have known that the actions of the respondent were eminently reasonable and that was likely to be a complete answer to any harassment claim.

[120]I should give some examples.

[121]Allegations 12.6 concerns his allegation that he was not allowed to hire direct reports independently. However, he set out no evidence to demonstrate why he believed he should have the right. He was aware that there was oversight from senior management, both for his hires and others (see paragraph 7.12 – 7.14 of the liability decision). The claimant had no reasonable basis for believing that he been treated differently to anyone else. He produced no supporting facts.

[122]Allegations 12.8 was a wide-ranging allegations about refusal to give access to a range of “technical portals” relevant to the performance of his duties. The tribunal dealt with paragraph 7.18 – 7.20. Whilst this allegation became tolerably clear, it also became clear the claimant gave no adequate evidence in relation to it. The claimant should have been able to say to which portals he was denied access, why he should have been given access, and how that access was denied. He failed to present any credible evidence. On the balance of probability, he should have understood the weakness of that allegation at the outset. He should have understood it had no reasonable prospect of success.

[123]I do not need to consider all of the allegations identified above. The reasons for the refusal are set out in detail in the liability decision, and those reasons are consistent with the observations I have made above.

[124]He should have known that the wrongful dismissal claim had no reasonable prospect of success. It was based on an assertion of discriminatory treatment and a history of harassment. He should have known there was not no prospect of either succeeding. He understood the explanations for the respondent’s actions, but chose to ignore the obvious reasonable conduct of the respondent.

[125]Viewed objectively, the allegations had no reasonable prospect of success, and the claimant should have known it at the outset.

[126]It follows the threshold for a costs order is met.

[127]There are also allegations of unreasonable conduct of the proceedings. - 23 -

[128]The respondent alleges that the pursuit of unmeritorious complaints demonstrates unreasonable conduct. In particular it relies on its cost warning letter 3 November 2023. I do not need to set out that letter in detail. It is a clear and considered letter. It sets out the relevant legal tests and outlines the defences. It goes into specific detail for a number of issues, including the claimant’s complaints about his share allocation. It particularly emphasises the need for him to give evidence as to how any alleged treatment was because of race. It deals with the breach of contract point. It explains, appropriately, the basis on which a costs order may be sought. It seeks to bring the proceedings to an end by making an offer of £5,000.

[129]Before me, the claimant suggests that the cost warning letter was simply an attempt at intimidation. I do not consider that to be a fair reading of the letter or the subsequent correspondence. The claimant’s response was belligerent. His email of 6 November 2023 includes the following I understand Respondent’s intention to settle, but the offer made is absurd and does not warrant a counteroffer. The only win-win scenario in this case is to settle. Whilst the case is also about financial remedies, it’s not just about that only. Respondent is in denial of the seriousness of the matter and the damage it has caused. The respondent may recall during the ACAS reconciliation, the remedies sought were merely the 3 months’ notice period and they had been ill- advised then, only to see the legal bill racking up and remedies snowballing. In case the Respondent has not understood the full remit of what is to come, I am detailing below. 1. The claim will be supported with the strongest of the evidences and the award is subject to the judge. However, Claimant does not waive any rights as set out in COT3. This will be in public records and will impact respondent’s exit strategies, renewals, new businesses, and insurance. 2. Respondent was involved in clear fraud and denied my right under UK GDPR / DPA, and it will be 4% of annual worldwide turnover. Tribunal judgment will also form part of the Civil Court Proceedings and Respondent will foot the cost of my legal representation in addition to the compensation awarded. 3. Furthermore, I will be seeking the removal of the individuals involved. This will lead to some of them losing their equity in the group subsequently. 4. I will also be seeking further explanation from LDC’s Directors and NEDs who condoned this including the fraudulent practices as it has already been confirmed in writing as so. This may lead to internal proceedings against them. This will also be escalated to the Responsible Business Committee (RBC), a sub-committee of the Board of Lloyds Banking Group plc. I am willing to negotiate a settlement, and as time goes on in the process, I may need to raise the settlement offer above the amount detailed in the - 24 - Schedule of Loss. Just to give an example, if the Tribunal is about to award £150k and the Respondent wants to settle just before the judgment, I will only be settling for £250k. Respondent will have a tougher choice to make then, if they persist with current tactics. I wanted to make a few amends in the settlement agreement, but not going to invest any time in that until we have reached an agreement on the number. If the Respondent is genuinely interested in settlement, I request them to come up with something that will truly materialise. Otherwise, I am happy to receive what the judge awards as remedies and proceed with further steps detailed as above. If it gets to that, they are putting a very low price tag on their jobs, equities, public records, and what’s at stake for the group.

[130]I accept that correspondence in these claims may be strongly worded. However, a party is still obliged to review its position reasonably and to act accordingly. There are elements in the claimant’s response which are indicative of unreasonableness. His reference to seeking removal of individuals is inappropriate. In submissions, Ms Amartey describe this as threatening. Ultimately, the claimant did not proceed with the action he indicates. On the balance of probability I conclude that he did not intend to: it was a tactic employed to put pressure on the respondent.

[131]I have some doubt whether an approach to settlement is conduct of the proceedings. However, there are matters which are relevant. The claimant made 78 covert recordings which he disclosed. He insisted on their being included as relevant. He referred to very few. It is clear they were not relevant. That approach put the respondent to expense which was unreasonable. That was clearly unreasonable conduct of

[132]The respondent submits that the sheer number of allegation, all of which ultimately failed, is evidence of unreasonable conduct of the proceedings.

[133]The basic position is that claimants may only pursue those claims pleaded in the claim form. At the commencement of the hearing, it was apparent that numerous claims had been included in the agreed list of issues which were not in the claim form. For that reason, the respondent was asked to clarify which were in the original claim form, which were not, which required amendment, and whether any amendment was objected to. The reality is there was a process by which the issues were defined which included case management by a relevant employment judge. It is unclear to me why the employment judge permitted matters to be included in the list of issues which were not in the claim form. Whilst the need for clarification and the impetus for including a large number of claims arise from the claimant’s conduct of these proceedings, I must bear in mind that there may have been a failure to make clear, at the case management stage, the need to identify only those claims pleaded. It would be unreasonable to expect a litigant in person to understand that the inclusion of matters in list of issues which were not in a claim form may be inappropriate, particularly when that approach appears to be sanctioned by an employment judge. Nevertheless that does not absolve the - 25 - claimant from his responsibility to set out clear factual allegations and thereafter to support them with evidence. That requirement is neither difficult nor technical. That failure is in itself evidence of unreasonable conduct of the proceedings. It is unreasonable because the respondent is prevented from knowing the case it is to answer. This leads to lengthy and unfocussed claims which occupy more tribunal time than is proportionate and puts respondents to greater expense than is reasonable.

[134]It is for a claimant to plead the case in a manner which can be understood by the respondent and by the tribunal. The allegations made should be those the claimant intends to pursue. They should be sufficiently clear. If the claimant seeks to introduce numerous allegations which are unclear, when it may be reasonably expected that the allegations should be precise, that is indicative of unreasonable conduct.

[135]In this case, the claimant has sought to include numerous unclear allegations. That combined with the failure to then give any evidence in relation to many of them, is clear unreasonable conduct of the

[136]There is reference to manufacturing claims. The claimant, soon after starting employment, started gathering evidence covertly. This included unauthorised recording of video hearings, as detailed in the liability decision. It is possible that this would indicate an intention to bring a claim, or even manufacturer claim. It is also possible that it indicated a degree of mistrust, but not necessarily an intention to bring a claim. It clearly demonstrates a lack of trust and it is inappropriate behaviour. Given the threshold for awarding costs has already been met, I do not have to decide whether this is evidence that the claimant intended to bring unmeritorious claims. It may be potential evidence of vexation. However, it is not necessary to decide whether the claimant acted vexatiously for the purpose of the threshold test.

[137]I find that the threshold for ordering costs is met.

[138]The second question is whether it is appropriate to make a costs order at all. I should have regard to all the circumstances. I should look at the whole picture. In this case, the claimant brought numerous claims, many of which he ought to know were not supported by evidence. For the reasons given he knew that there was, for many claims, no reasonable prospect of success. During the course of the proceedings, he asserted that he would bring evidence. His reference to reporting individuals and having them removed from there positions was inappropriate. His engagement with settlement was unrealistic and at times he appeared to demand a premium for settlement.

[139]I have considered, as far as I can, the claimant’s mental processes. During submissions, he discussed his personal situation and I did explore whether that may have affected his judgement. However, he fell short of - 26 - suggesting that any personal grief adversely affected his judgement in this case at any time.

[140]I conclude that the claimant is a rational and intelligent man who is capable of relevant analysis and reflection. I conclude that he chose to proceed with claims which he knew or ought to have known had no reasonable prospect of success. Moreover, he did so in a way which on occasions was belligerent and which he understood, or ought to have understood, put the respondent to an unnecessary expense. In those circumstances, I am satisfied that it is appropriate to make a costs order.

[141]The final matter to considers is what order should be made. As noted above, I have a wide discretion. I have regard to MacPherson. I note the need for caution emphasised by LJ Mummery. It is not appropriate to compartmentalise the case under separate headings of nature, gravity, and effect. I have regard to all those matters, and I must look at the whole picture. I do not have to determine whether there is a precise causal link between the unreasonable conduct and the specific incurring of costs. In any event, when there is a finding that the claimant ought to have known at the commencement of the claim that there was no reasonable prospect of success it is likely that the entirety the costs of the action fall to be considered.

[142]The claimant has not sought to argue before me that there was any specific claim which had a prospect success, albeit I do not take him to concede that the claims had no prospect of success. The height of his argument was that he consented to the dismissal of one claim. However, that claim concerned unfair dismissal and was dismissed on the basis of his not having two years’ service. I do not view that as relevant to a claim which predominately concerned discrimination. I have not identified any claim for which it would be reasonable to say the claimant could have thought it had a reasonable prospect of success at the outset.

[143]The claimant has filed evidence about his means. In brief, the claimant says he was unemployed for 20 months. He commenced new employment on 1 October 2024, but at a significantly lower rate of £40,000 per annum. He says he has no savings and assets, as ihe was required to use any savings before claiming universal credit. He owes £4,000 in unpaid tax to HMRC. He says he is borrowing money from friends and relatives. He has rent of £2,000 per month and has the main financial responsibility for his family. In brief, his outgoings exceed his income. I accept all that.

[144]Against that, the respondent says that the disclosure of his financial circumstances is limited, and in any event, given that he had previously earned in the region of a hundred thousand pounds per annum, there is prospect to his circumstances improving. - 27 -

[145]I accept that the evidence I received from the claimant was limited,. However, I have no reason to believe the claimant has sought to mislead and I accept that his financial position is difficult.

[146]The claimant suggests there is little prospect of obtaining new employment. However, I do not accept there is no prospect of his circumstances improving.

[147]The respondent seeks a detailed assessment. The respondent’s costs are over £90,000. That is not a surprising amount. It is consistent with similar cases.

[148]I have considered his impecuniosity and its relevance. I have noted the cases relied on by the respondent, particularly Arrowsmith and Vaughan. I take the view that Arrowsmith is authority for the proposition that I do not have to limit the amount payable to that which could reasonably be paid.

[149]I have considered the EAT’s decision in Chadburn-v-Doncaster NHS [2015]

UKEAT/0259/14

[150]I should note that paragraph 37 of Arrowsmith makes it clear that the tribunal was not obliged to have any regard to the means to pay. It is clear that even if the tribunal has regards to the means to pay, it is not necessary to restrict the amount to that that a claimant could pay. I do not read paragraph 37 as indicating that there must be a finding that there is some likelihood of a claimant’s means improving, such that there may be some prospect of payment, as a condition of making an order.

[151]In this case, I take the primary view that I should not have regard to the claimant’s ability to pay. In reaching that decision I have regard to the claimant’s overall conduct in first pursuing claims should have reasonably known had no prospect of success and thereafter the way he dealt with the proceeding. He failed to set out his claims clearly. He failed to give evidence for many of the allegations. His conduct of the proceedings was unreasonable, and he did not reasonably engage with the respondent’s reasonable attempts to settle the claim. Rule 82 makes it clear that I may have regard to his means, but I am not obliged to. Given the circumstances of this case, I do not have regard to the means to pay.

[152]In the alternative, if I am wrong and I am obliged to have regard to the means to pay, I conclude that there is a reasonable prospect to the claimant’s financial position improving, such that he would be able to pay the entirety of the costs at some future date.

[153]I could take the view that the claimant’s means are so limited that it be appropriate to award nothing. I could take the view that his means should be ignored altogether. I could take the view that his ability to pay may improve in the future such that he can pay the full amount. - 28 -

[154]I have to exercise my discretion. My discretion is broad. In this case I consider my discretion could extend up to making an order the claimant to pay all the cost for the whole of the proceedings by way of a detailed assessment. However, the amount of the order is at my discretion. I am satisfied that the respondent is entitled to recover costs. I make a summary award of £20,000 to be paid within 14 days of the date of the judgment.