Ms D Daoud v Governing Body of the Holy Family Catholic Primary School and Others: 2207487/2021
JUDGMENT
[1]No part of the claim against the First and Third Respondents is struck out. Deposit orders are made in accordance with the Order of the same date as this judgment.[2]The claim against the Second Respondent is struck out on the grounds that it has no reasonable prospect of success.REASONS
[1]The Claimant has brought complaints of direct discrimination because of race / harassment related to race, and unfair dismissal. This preliminary hearing was listed to determine:1.1 The applications by the First and Third Respondents to strike out parts of the discrimination / harassment complaints, or for deposit orders.1.2 The application by the Second Respondent to be removed from the proceedings, or to strike out the claim against it, or for a deposit order.[2]There was an agreed bundle of documents containing 256 pages, and page numbers in these reasons refer to that bundle. I was also provided with a 2-page witness statement from the Claimant and written submissions on behalf of the Second Respondent.[3]The hearing was listed for 3 hours. I was grateful for the way in which all three representatives made good use of the available time so as to ensure that all the issues were addressed. Time did not permit an oral judgment and reasons, and so I reserved my judgment.[4]The full hearing, for 5 days, is due to commence on 28 November 2022.[5]The issues in the discrimination / harassment complaint were identified by Employment Judge Grewal at a preliminary hearing on 24 March 2022 (pages 78-82). EJ Grewal identified the basis of the complaint as being an alleged practice of appointing new staff members, who were Irish ethnicity, to permanent full-time contracts, and then defined the issue as follows:5.1 The Claimant describes herself as being of Egyptian heritage. She claims that she was treated less favourably than 3 individuals [who I will identify in these reasons as Ms F, Ms O’D and Ms S].5.2 Whether the following acts occurred and, if they did, whether they amounted to direct race discrimination or race-related harassment:5.2.1 The Respondents failed to offer her a permanent contract or to renew her fixed-term contract.5.2.2 The Respondents failed to offer her the new Teaching Assistant role on or around 22 April 2021 (of which she was made aware on 1 July 2021) which was offered to Ms F despite her not having the same level of childcare experience or tracing qualifications as the Claimant.5.2.3 The Respondents decided to employ two further Irish Teaching Assistants [namely, Ms O’D and Ms S] on permanent contracts from September 2021 despite informing the Claimant that her role could not be made permanent due to budget cuts.5.2.4 The Respondents failed to arrange phonics training for the Claimant which had been requested in writing from the SENCO around February / March 2021, and the subsequent arranging of the same for Ms F and Ms O’D in July 2021.5.3 Whether the Tribunal has jurisdiction to consider complaints about any acts or omissions that occurred before 8 July 2021. First and Third Respondents’ applications[6]Rule 37 of the Rules of Procedure provides that: “……a Tribunal may strike out all or any part of a claim or response on any of the following grounds – (a) That it……..has no reasonable prospect of success.”[7]The requirement that there be no reasonable prospect of success does not mean that there must be absolutely no prospect at all of success at one extreme, nor that the claim is more likely to fail than to succeed at the other extreme. It means that there must be no reasonable prospect of success. If the Tribunal concludes that this is the case, striking out does not automatically follow: there is a discretion to exercise.[8]Rule 39 contains the following provision: (1) Where…the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party….to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.[9]An allegation which has little reasonable prospect of success has greater prospects of success than one which has no reasonable prospect of success. The prospects would, nonetheless, be poor, and somewhat poorer than “more likely to fail than to succeed”. Again, if the Tribunal concludes that there is little reasonable prospect of success, there is a discretion to be exercised when deciding whether to make a deposit order.[10]Additionally, rule 39(2) provides that the Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. The consequence of a failure to pay a deposit is that the specific allegation or argument shall be struck out: and so, the Tribunal must take care not to make a deposit order which has the effect of striking out the allegation or argument purely because the Claimant is unable to pay the amount ordered.[11]Ms Sheridan presented the First and Third Respondents’ case by reference to the written application dated 19 July 2022 (pages 121-124), refining it in the course of her submissions, and Ms McGee helpfully replied using the same format. I will address the arguments in the same order, giving in the first instance my conclusions on the Claimant’s prospects of success with regard to each point. I will then express my findings as to whether any particular part of the claim should be struck out, or made the subject of a deposit order, in relation to each of the issues as set out above. I take this approach because each of the complaints concerned is the subject of more than one of the arguments raised. To avoid repetition, in this part of these reasons I will use the term “the Respondents” to signify the First and Third Respondents.[12]Ms Sheridan first addressed the three comparators relied on by the Claimant. It was common ground that the complaint of favouring Irish individuals means that the Claimant’s relevant protected characteristic is that of not being Irish.[13]The Claimant asserts that the three named comparators are Irish. The Respondents say that Ms F and Ms S are not Irish. There was at page 201 what was said to be a form completed by Ms F in which she selected “English” as her ethnic origin and at page 157 a similar form said to have been completed by Ms S in which she selected “British” (“Irish” being an available option and not selected by either). I have describe these as “said to be” completed by these individuals as Ms McGee submitted that the complete documents had not been provided and that there was nothing specific to link the signature pages which followed to these particular pages. That is true as far as it goes, although I found it implausible that the Respondents might have mixed up, still less deliberately inserted (should that be suggested), pages completed by different individuals. I took the documents at face value.[14]Ms McGee also said that the Claimant was proposing to call witnesses to give evidence that Ms F and Ms S said that they were Irish.[15]The Respondents accept that Ms O’D is Irish, but contend that her circumstances are materially different from the Claimant’s in that (as shown on her application at pages 137-140) she is a qualified teacher, which the Claimant is not.[16]Ms Sheridan argued that Ms F and Ms S should be struck out as comparators and that a deposit order should be made in respect of the use of Ms O’D as a comparator.[17]I concluded that:17.1 There is little reasonable prospect of the Tribunal finding that Ms F and Ms S are Irish. Leaving aside questions of nationality (there being no suggestion that this arises in the present case), it is very unlikely that a Tribunal will decide that an individual is of Irish ethnic origin if they maintain that they are not. Such a finding is not, however, impossible. For example, a Tribunal might find that such an individual has on other occasions or in other situations identified as Irish and, if there was any favouring of Irish people, benefited from that. I have considered whether the possibility of such a finding is so remote that there is no reasonable prospect of it being made. Given what I have been told about the evidence to be called by the Claimant, I have concluded that this is not the case.17.2 It is not the case that there is little reasonable prospect of the argument that Ms O’D is an appropriate comparator succeeding. I consider that it is open to argument whether her teaching qualification rendered her circumstances materially different to the Claimant’s when the posts in issue were those of Teaching Assistants.[18]Ms Sheridan then addressed paragraphs 16(b)-(d) and 22(b)-(d) of the Particulars of Claim (pages 19 and 20-21). These are in turn reflected in issues 5.2.2 and 5.2.3 above, concerning the roles which were offered in April (to Ms F) and September 2021 (to Ms S and Ms O’D) respectively.[19]It was common ground that roles within the school were usually advertised; that the September roles were advertised; and that the Claimant did not apply for any of the roles. Ms McGee stated that the Claimant did not accept that the April role was advertised and that there was no evidence of that having been done.[20]Ms Sheridan argued that there cannot have been less favourable treatment of the Claimant, nor can there have been any harassing effect on her, given that she did not apply for the roles. She further argued that, in reality, the Claimant was relying on these allegations as evidence in support of her complaint about the non-renewal of her contract (issue 5.2.1). Ms McGee replied that there was no evidence that the Claimant was told the vacancies were available during ongoing discussions about renewal, which I took to mean that the Claimant’s case was that she was not told about them.[21]I concluded that, given the dispute about whether the April vacancy had been advertised, I could not say that there was little or no reasonable prospect of the Tribunal finding that this amounted to less favourable treatment of the Claimant.[22]The complaint about the September appointments seems to me to add little, if anything, to the complaint that not renewing the Claimant’s contract was an act of less favourable treatment, as demonstrated by Ms McGee’s explanation of the Claimant’s case as set out above. I do not, however, consider that there is no reasonable prospect of it succeeding, in the terms described by Ms McGee. I find, however, that there is little reasonable prospect of this succeeding as a separate allegation from that of not renewing the Claimant’s contract. Such a finding would involve the Tribunal concluding that, separately from not renewing the Claimant’s contract, the Respondents decided not to consider her for the new roles when she had not applied for them; and that they treated or would have treated differently an Irish comparator whose contract had not been renewed and who also had not applied. I consider that, while not impossible, this is an inherently unlikely finding.[23]I have reached a separate conclusion about the alternative allegations of harassment, which I shall set out below.[24]Ms Sheridan then addressed the issue of time limits, again seeking deposit orders. Ms Sheridan contended, and Ms McGee did not dispute, that the complaints in paragraphs 16(b)-(e) and 22(b)-(e) of the Particulars of Claim (issues 5.2.2, 5.2.3 and 5.2.4 above) were prima facie out of time, the relevant date for this purpose being 8 July 2021. The issue for me to decide was whether there was little reasonable prospect of the Tribunal finding that there was conduct extending over a period including the nonrenewal of the Claimant’s contract, such as to bring the earlier complaints within time, or of the Tribunal finding that it was just and equitable to extend time.[25]Ms McGee relied on ongoing conversations from September 2020 about whether the Claimant would be given a permanent contract. I concluded that, if the Tribunal were to find that the non-renewal of the Claimant’s contract was an act of discrimination, it might also find that there was conduct extending over a period such as to bring within time any earlier decisions about Teaching Assistant roles that were also found to be discriminatory. I did not consider that there was little reasonable prospect of this.[26]That conclusion applies to issues 5.2.2 and 5.2.3. I found the position to be different with regard to issue 5.2.4. The subject matter of this (phonics training) is different, and it was not disputed that it involved a different decision maker (Ms Troughton as opposed to Mr Doherty). I concluded that there was little reasonable prospect of the Tribunal finding that this was part of conduct extending over a period. So far as a just and equitable extension of time is concerned, this would be for the Tribunal to decide, but the Claimant has advanced no grounds on which this might be granted. I therefore find that there is little reasonable prospect of an extension of time being granted.[27]Finally, Ms Sheridan sought deposit orders in respect of paragraphs 22(a) and (e) of the Particulars of Claim (issues 5.2.1 and 5.2.4) as allegations of harassment. Ms Sheridan contended that there was little reasonable prospect of the Tribunal finding that either the failure to renew the Claimant’s contract, or the failure to arrange phonics training had the effect of harassing her, taking into account the need to consider the objective reasonableness of any the Claimant’s perception. Ultimately I was not convinced by this: it would be a matter for the Tribunal to decide on the evidence.[28]I considered that the stronger argument was that, by virtue of section 212 of the Equality Act, conduct cannot amount to both direct discrimination and harassment; and that if the complaint about non-renewal of the contract is to succeed, it will succeed on the basis that it was done because the Claimant is not Irish. Ms Sheridan submitted, and I agreed, that no other way in which the decision might have been “related to” the Claimant’s ethnic origin had been identified. I considered whether this meant that there was no reasonable prospect of the allegations succeeding as complaints of harassment and concluded that this was not quite so, as there was a possibility that ultimately the evidence might support that finding rather than direct discrimination. I concluded, however, that there was little reasonable prospect of issues 5.2.1 or 5.2.4 succeeding as allegations of harassment.[29]The effect of my findings with regard to the issues in the case is as follows:29.1 None should be struck out.29.2 Issue 5.2.1: there is little reasonable prospect of this succeeding as an allegation of harassment.29.3 Issue 5.2.2 (paragraphs 16(b) and (c) and 22(b) and (c) of the Particulars of Claim): there is little reasonable prospect of the Tribunal finding that Ms F is Irish.29.4 Issue 5.2.3 (paragraphs 16(d) and 22(d) of the Particulars of Claim: there is little reasonable prospect of this succeeding as a separate complaint from issue 5.2.1; and little reasonable prospect of the Tribunal finding that Ms S is Irish.29.5 Issue 5.2.4 (paragraphs 16(e) and 22(e) of the Particulars of Claim: there is little reasonable prospect of the Tribunal finding that it has jurisdiction to hear this complaint, given the applicable time limits and additionally little reasonable prospect of this complaint succeeding as an allegation of harassment.[30]I considered whether I should, as a matter of discretion, make deposit orders where I have found that there is little prospect of success. I concluded that I should do so. The Claimant should consider whether she should continue with these aspects of her claim given my assessment of them. No matter other than the prospects of success has been canvassed as a reason why I should not make deposit orders.[31]Rule 39(2) provides that: The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.[32]The Claimant had not provided any evidence about her ability to pay. When I enquired about this, Ms McGee, on instructions, said that the Claimant had no income but received money from her family, and could afford a total of around £200 - £300. Ms Sheridan observed, understandably, that the Claimant was in receipt of legal advice and should have provided information about her ability to pay if she wanted that to be taken into account.[33]In the absence of any information beyond what has been said on the Claimant’s behalf, I took the view that it was unlikely that she was overstating her ability to pay. I also took into account Ms Sheridan’s submission that, in order to be effective, the amount of a deposit order should be sufficient to make a difference. I also reminded myself that imposing an order that the Claimant could not pay would be tantamount to striking out the relevant parts of the claim. With all of this is in mind, I made deposit orders in the total sum of £375. The details are set out in the separate deposit order sent with this judgment. Second Respondent’s application[34]Turning to the Second Respondent’s application, rule 34 includes provision for the removal of a party “apparently wrongly included”. I understand this as applying to a party who has been included in the proceedings by mistake, or to similar situations, rather than to a situation where, as here, it is contended that the claim against that party is bound to fail. That seems to me to fall within rule 37(1)(a) as being a claim that has no reasonable prospect of success. I therefore considered the Second Respondent’s application under this alternative ground.[35]Ms Gill stated that the Second Respondent provided an HR function to the First Respondent and was named on documents such as the Claimant’s payslips and her P45 for that reason and, in the case of the P45, because it uses the same tax reference as the First Respondent. Ms Gill further stated that nothing had happened in practice to suggest that the Second Respondent was the employer.[36]Ms McGee confirmed that only the complaint of unfair dismissal was made against the Second Respondent. She relied on the P45 and other documents and submitted (rightly in my judgment) that there was no evidence of the stated HR function.[37]I have no difficulty in seeing why a Claimant would join the London Borough of Ealing as a Respondent when they have received a P45 which gives the employer’s name and address as “London Borough of Ealing”, etc. The matter does not, however, end there. Section 36(2) of the Education Act 2002 provides in respect of voluntary aided schools, of which the First Respondent is one, that: “…….any teacher or other member of staff who is appointed to work under a contract of employment at a school to which this section applies is to be employed by the governing body of the school.”[38]Ms McGee could offer no real answer to this point. The Claimant’s particulars of employment showed the First Respondent as her employer. I considered whether there might be some way of interpreting section 36(2) such that if a member of staff entered into a contract of employment with some entity other than the governing body of the school, there might then be a valid contract of employment with that entity, albeit in breach of section 36(2). I concluded that, whatever the answer to that question might be, this was not what had happened here. I found that, in practical terms, the only possible outcome of the decision as to who was the Claimant’s employer was that it was the First, and not the Second, Respondent. Section 36(2) does not allow for any other outcome.[39]I therefore concluded that the claim against the Second Respondent has no reasonable prospect of success. Again, I had to consider as a matter of discretion whether the claim should be struck out. Nothing additional as to why it should not has been raised. I have not been told of any other reason why the Second Respondent should be retained as a party. I concluded that I should strike out the claim.[1]By a reserved judgment and reasons sent to the parties on 13 October 2022, following a preliminary hearing on 27 September 2022, I determined among other matters that the claim against the Second Respondent should be struck out on the grounds that it had no reasonable prospect of success. On 9 November 2022 the Second Respondent (“Ealing”) applied for a costs order against the Claimant. The parties have agreed that I should consider and determine the application on paper.[2]In determining this application I have had regard to the following submissions:2.1 Ealing’s application dated 9 November 2022.2.2 An email from the Claimant’s solicitors dated 18 November 2022.2.3 Written submissions on behalf of the Claimant dated 30 November 2022.2.4 An email from Ealing dated 7 December 2022 containing further submissions in response to those on behalf of the Claimant.[3]Rule 76 of the Rules of Procedure includes the following provisions about costs: (1) A Tribunal may make a costs order…….., and shall consider whether to do so, where it considers that: (a) A party (or that party’s representative) has acted……unreasonably in either the bringing of the proceedings (or part) or the way in which the proceedings (or part) have been conducted; or (b) Any claim……had no reasonable prospect of success.[4]Rule 84 provides as follows: In deciding whether to make a costs………order, and if so in what amount, the Tribunal may have regard to the paying party’s…..ability to pay.[5]Costs do not generally follow the event in Tribunal proceedings, and costs orders are the exception rather than the rule. A costs order can only be made if one or more of the conditions in rule 76 is met. If that is the case, there is in addition a discretion to be exercised: the making of a costs order does not follow automatically.[6]Ealing contends that the claim against it (which was limited to unfair dismissal) had no reasonable prospect of success, and that the Claimant acted unreasonably in bringing and pursuing the claim. (In using the term “the Claimant” I do not draw any distinction between the Claimant herself and her solicitors, as no one seeks to rely on any such distinction).[7]So far as the prospects of success are concerned, I have already determined that, as at the date of the preliminary hearing, the claim had no reasonable prospect of success. This was because I held that the effect of section 36(2) of the Education Act 2002, in the circumstances of the present case, was that: “……in practical terms, the only possible outcome of the decision as to who was the Claimant’s employer was that it was the First, and not the Second Respondent. Section 36(2) does not allow for any other outcome”.[8]It is relevant to summarise how the contention to this effect was advanced by Ealing in the course of the proceedings. In its Response to the claim, Ealing relied on section 36 and pleaded that only the First Respondent could be the Claimant’s employer. The First Respondent in its Response agreed that it was the employer and that Ealing could be removed from the proceedings. The point was discussed at a preliminary hearing on 24 March 2022, and Employment Judge Grewal made an order requiring the Claimant to provide further information, including in support of her request to retain Ealing as a Respondent.[9]In her further and better particulars provided on 20 April 2022 the Claimant said the following on the point in question: “3. The Claimant maintains that the Second Respondent was her employer and should remain party to this claim. “4. The Second Respondent has issued a number of documents to the Claimant, including contract renewal documents, payslip and pension documents. Furthermore, the Second Respondent was named as the Claimant’s employer on her P45.”[10]As I observed in my reasons for striking out the claim against Ealing, it was the case that Ealing was identified as the Claimant’s employer in the P45 issued to her and in other documents. The other documents included a P60 and the Claimant’s payslips. Additionally, in 2018 and 2020 letters were sent to the Claimant on Ealing headed paper stating that agreement had been given to extending her fixed term contract (the first being signed on behalf of the School Office and the second by the Head Teacher, the Third Respondent). The contracts themselves, however, identified the First Respondent as the Claimant’s employer.[11]On 11 May 2022 Ealing sent amended particulars of its Response in which it said that it had carried out an HR and payroll function for the First Respondent, hence the appearance of Ealing’s name on the documents, but repeating that it was not the Claimant’s employer. Ealing again cited section 36, and made a further application for removal as a respondent, saying that it would regard continuing with the claim as unreasonable conduct. Ealing sent further correspondence along the same lines on 28 July and 11 August 2022, including warning of a costs application.[12]As I have already stated, at the preliminary hearing I accepted the submission that the effect of section 36 was that Ealing could not have been the Claimant’s employer, and that the claim therefore had no reasonable prospect of success. For the purposes of the present application, I find that at all times the claim against Ealing had no reasonable prospect of success, because of the effect of section 36. That condition for the making of a costs order has therefore been established.[13]I have also considered whether the Claimant’s conduct of the proceedings was unreasonable. On this point, I observed in my earlier reasons that I had no difficulty seeing why a claimant would join Ealing as a respondent when they had received a P45 showing the employer’s name and address as the London Borough of Ealing, etc. I remain of the same view, which is strengthened by the other documents referred to above and which are consistent with Ealing putting itself forward as the employer. I find that it was not unreasonable conduct of the proceedings to join Ealing as a respondent in the first instance.[14]I have then asked myself whether the position was any different once the section 36 point had been taken in the response, or after Ealing had provided amended particulars of its response in May 2022 (the costs application in fact being limited to the latter period).[15]The submissions on behalf of the Claimant assert that she was not acting unreasonably in persisting in her belief that Ealing was her employer until the Tribunal determined that she was wrong. I reminded myself that at the preliminary hearing counsel for the Claimant submitted, and I accepted, that Ealing had not provided any evidence in support of the stated HR and payroll function. I could not, and cannot, see any reason to doubt what Ealing said about this, but I consider that it is not in itself unreasonable for a claimant not to accept an explanation given by a respondent which is not supported by evidence. This is particularly so when the claimant concerned has documents showing the relevant respondent as her employer.[16]There remains the (ultimately successful) argument under section 36. As I have stated, this was relied upon in Ealing’s response, and was referred to in the later correspondence. Ealing maintains that the Claimant’s solicitors never addressed the point in correspondence, and I have not been referred to anything that suggests the contrary. At the preliminary hearing, counsel for the Claimant addressed me on the reasons why the Claimant believed that Ealing was her employer, and referred to the lack of evidence about the HR and payroll function, but raised no argument against the section 36 point.[17]I find that it was unreasonable conduct of the litigation to persist with the contention that Ealing was the Claimant’s employer in the face of the section 36 point, and without relying on any argument directed to that point. The situation might be different if some reasonable argument against what Ealing was saying about the effect of section 36 had been raised, but none was. I do not, however, consider that the conduct of the proceedings became unreasonable in this respect as soon as section 36 was raised. Section 36 is not, so far as I am aware, a well-known provision, and the Claimant and her advisers would have needed to research it and consider it before conceding the point (as it seems to me inevitable that they should have done on full consideration of it).[18]I find that the conduct of the proceedings in this respect was unreasonable as from around late May 2022, being a reasonable period after Ealing had reiterated their position on 11 May.[19]I have therefore found that, in both respects, the threshold conditions for making a costs order have been met. I then have to consider whether, as a matter of discretion, I should make a costs order. As a matter of general discretion, I have considered whether the fact that I have found that it was not unreasonable to have joined Ealing in the first instance should be put into the balance against making a costs order. Given that the application is restricted to the period during which I have found that it was unreasonable to persist with the argument that Ealing was the employer, I find that it should not. This has already effectively been allowed for by restricting the application in that way.[20]Although I have found that section 36 is not a well-known provision, the Claimant has been legally represented throughout. This is not a situation where it might be said, for example, that a litigant in person could not be expected to research and concede a legal argument, and so could reasonably leave it to the Tribunal to determine.[21]A further, particular, matter that may be taken into account in relation to the exercise of the discretion is ability to pay, as provided for in rule 84.[22]On 28 November 2022 the Tribunal sent a letter to the Claimant’s solicitors which stated that Employment Judge Baty had ordered her to provide her comments on the costs application, and which continued: “She should also include information about whether she has the financial means to pay the costs sought and, if she maintains she does not, set out what her income, assets and liabilities are, including providing the evidence to substantiate this.”[23]The written submissions on behalf of the Claimant addressed the particular question of insurance, which Ealing had raised in the costs application, saying that the Claimant “is not insured against an award of costs”. Although it is suggested by Ealing that this does not exclude the possibility that the Claimant was insured at some relevant stage, I take it as meaning that the Claimant does not now have available to her any insurance cover in respect of the costs application.[24]Beyond that, the totality of what is said on the Claimant’s behalf under the heading “Ability to pay / means” is as follows: “15. If the Tribunal is minded to order the Claimant to pay costs, it is obliged to consider her ability to pay. [This is incorrect: the effect of rule 84 is that the Tribunal may consider this, not that it must]. “16. It should be noted from her schedule of loss submitted to the Tribunal for the final hearing…that the Claimant has not worked since her dismissal from the school in the summer of 2021 and is being supported financially by her family. “17. Subsequently the Claimant has been ill and has sought medical treatment for the stress and anxiety which has affected her greatly and has affected her ability to work and also makes clear decision making difficult. Presently the Claimant is still signed unfit to work by her GP.”[25]This does not comply with EJ Baty’s order. What is said is clearly intended to imply that the Claimant is unable to pay any costs, or has a restricted ability to do so; but stating that the Claimant has not worked since her dismissal, is unfit to work and is being supported by her family does not tell the Tribunal what her income, assets and liabilities are. Furthermore, no supporting evidence has been provided.[26]I am conscious that, when deciding to make deposit orders totalling £375 in respect of the claims against the First and Third Respondents, I observed that the Claimant had not then provided any evidence about her ability to pay. Counsel stated, on instructions, that the Claimant had no income but received money from her family, and could afford around £200 - £300. I expressed the view that it was unlikely that the Claimant was over-stating her ability to pay, but had it in mind that I should take care not to effectively strike out the claim by imposing an order that the Claimant could not pay.[27]I have to say that it is surprising that, given what I had already observed in relation to ability to pay as regards the deposit orders, the Claimant has not complied with EJ Baty’s order, while still trying to rely on inability to pay with regard to the costs application.[28]The risk of striking out a claim “by the back door” by ordering payment of a deposit that the Claimant cannot pay does not arise in relation to a costs order. Enforcement of such an order lies with the County Court, where the Claimant can put forward evidence of her means. She has effectively chosen not to do so at the present stage, and I have concluded that I should not have regard to her ability to pay, either when deciding on whether to make a costs order, or in deciding the amount of such an order. In fact, the approach that the Claimant has taken means that I am not able to reach a conclusion as to what her ability to pay may be.[29]Rule 78(1)(a) provides that a costs order may order the paying party to pay a specific amount, not exceeding £20,000.[30]Ealing have produced a schedule seeking the sum of £8,612.50, set out with reference to 25 items. While it is not strictly necessary for the exercise of the Tribunal’s costs jurisdiction to find that the costs were caused by the unreasonable conduct, I accept Ealing’s argument that all costs incurred after the Claimant was put on notice of their status were so caused, in the sense that the claim against Ealing should have been withdrawn.[31]It is submitted on behalf of the Claimant that the sum claimed in the schedule is excessive; Ealing dispute this. I have to consider this by reference to what it would be reasonable to require the paying party to pay, which may not necessarily be the same as what would be reasonable as between solicitor and client. It would not be proportionate, nor practical in the absence of detailed submissions, to go through the schedule item by item. I make, however, the following general observations:31.1 There are 4 items (numbers 7, 10, 13 and 14) which include reviews of the file or documents being prepared within Ealing, rather than reviews of documents received from the Claimant or the Tribunal. I find that it is not reasonable to charge this work to the paying party. The total claimed for these items is £1,193.80. Making some allowance for work other than reviewing, I find that there should be a reduction of £900.31.2 Items 11, 12 and 14 relate to preparation for the preliminary hearing and total 6 hours 50 minutes at the higher rate of £282. Given the previous correspondence setting out Ealing’s position on the section 36 point and its HR function, I find that a further 2 hours would have been reasonable, and that there should be a reduction of £1,363 (4 hours 50 minutes x 282 per hour).31.3 Items 19 and 20 claim 2 hours 30 minutes in relation to the costs application, again at the higher rate. Items 21 to 23 claim 2 hours 58 minutes at the lower rate in relation to the costs application and schedule. Items 24 and 25 claim a further 5 hours 30 minutes at the higher rate in relation to reviewing the schedule and application, amending the schedule and further drafting the application, and emailing the Tribunal. I find that in addition to items 21 to 23, a total of a further 2 hours 30 minutes at the higher rate would have been reasonable to allow for liaising with the client and reviewing the draft schedule and application, and that there should be a reduction of £1,551.[32]The total of the above reductions is £3,814, which would leave a total of £4,798.40 when deducted from the figure on the schedule. I have then asked myself whether, looked at overall, this would be a proportionate amount to order given the nature of the issue. Noting that I have not so far made any finding about the use of the higher and lower rates, and again taking a broad approach, I find that the sum of £3,000 is proportionate.[33]I therefore make a costs order in the sum of £3,000, to be paid by the Claimant to the Second Respondent. Employment Judge Glennie