Mr B Gutierrez v London General Transport Services Ltd: 2300119/2020
EMPLOYMENT TRIBUNALS
Case No 2300119/2020
Between
Mr B GutierrezClaimantLondon General Transport Services LimitedRespondent
Before
Employment Judge FreerDate 12 April 2022
JUDGMENT
The claim is struck out.
REASONS
[1]By a letter dated 4 April 2022 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the claim should not be struck out because it has not been actively pursued.[2]The claimant has failed within the time stipulated to make representations in writing, or has failed to make any sufficient representations, why the claim should not be struck out or to request a hearing. The claim is therefore struck out.[3]The hearing fixed for 19-22 April 2022 will not take place.[1]The Claimant’s claim for disability discrimination was submitted on 8 January 2020. It was struck out, on the basis that it had not been actively pursued, by Regional Employment Judge Freer on 12 April 2022, a week before a four-day full hearing was due to commence. The Claimant applied for a reconsideration of that decision on 19 April 2022, and by letter dated 3 May 2022, Regional Employment Judge Freer decided not to refuse the Claimant’s application under rule 72(1) of the Employment Tribunal Rules of Procedure, but invited the Respondent’s submissions in response, and the parties’ views on whether the application could be determined without a hearing. The parties agreed that the application could be determined on the papers. As REJ Freer has now moved to a different region, the reconsideration application has been allocated to me to determine. Documents[2]I have reviewed the Employment Tribunal file, and I have had regard in particular to the submissions made on behalf of the Claimant by Muhammad Munir of Daffodils Solicitors, dated 19 April 2022 and 17 May 2022, and those made on behalf of the Respondent by Sam Murray-Hinde of Howard Kennedy LLP, dated 16 May 2022. The respective submissions are summarised in the relevant section of my reasons below.
Factual Background
[3]I have taken the relevant factual background from the documents on the file.[4]As set out above, the Claimant’s claim for disability discrimination (specifically, discrimination because of something arising from disability under s. 15 Equality Act 2010, and a failure to make reasonable adjustments under s. 20 – 21 EqA 2010) was submitted on 8 January 2020. The disability relied upon was migraine. At that time, the Claimant was represented by United Voices of the World Union. The Respondent entered a response denying all claims on 7 February 2020.[5]A telephone case management hearing was listed for 13 July 2020. Ahead of that hearing, the Respondent asked first that there be an open preliminary hearing to consider whether the claim should be struck out as having no reasonable prospect of success, and then on 18 June 2020, modified its request to ask instead that consideration be given to making a deposit order at the telephone case management hearing.[6]It was intended that this application be considered at the case management hearing, held as planned on 13 July 2020, but there was insufficient time to deal with it. The case was to be listed for a three day hearing and directions were made, but no hearing date was listed. The Respondent was to make any application for a deposit order in writing.
[21]Rule 70 of the Employment Tribunal Rules of Procedure provides as follows: A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.[22]In Newcastle upon Tyne City Council v Marsden [2010] ICR 743, commenting on the previous iteration of the Employment Tribunal Rules, Underhill P (as he then was) said:16. Williams v Ferrosan Ltd and Sodexho Ltd v Gibbons clearly show that the extensive case law in relation to rule 34(3)(e) and its predecessors should not be regarded as requiring tribunals when considering applications under that head to apply particular, and restrictive, formulae—such as the “exceptionality” and “procedural mishap” tests which were understood to be prescribed by DG Moncrieff (Farmers) Ltd and Trimble. I would not in any way question that approach or the general message of both decisions. There is in this field as in others a tendency—often denounced but seemingly ineradicable—for broad statutory discretions to become gradually so encrusted with case law that decisions are made by resort to phrases or labels drawn from the authorities rather than on a careful assessment of what justice requires in the particular case. Thus a periodic scraping of the keel is desirable. (The exercise would indeed have been justifiable even apart from the introduction of the overriding objective. It is not as if the principles of the overriding objective were unknown prior to their explicit incorporation in the Rules in 2001: rule 34(3)(e) itself is based squarely on the interests of justice. But I can see why its introduction has commended itself to judges of this tribunal as a useful hook on which to hang an apparent departure from a long stream of previous authority.)17. But it is important not to throw the baby out with the bath-water. As Rimer LJ observed in Jurkowska v Hlmad Ltd [2008] ICR 841, para 19 it is “basic” “that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may have to be adapted on a case by case basis to meet what are perceived to be the special or exceptional circumstances of a particular case. But they at least provide the structure on the basis of which a just decision can be made.” The principles that underlie such decisions as Flint and Lindsay remain valid, and although those cases should not be regarded as establishing propositions of law giving a conclusive answer in every apparently similar case, they are valuable as drawing attention to those underlying principles. In particular, the weight attached in many of the previous cases to the importance of finality in litigation—or, as Phillips J put it in Flint (at a time when the phrase was fresher than it is now), the view that it is unjust to give the losing party a second bite of the cherry—seems to me entirely appropriate: justice requires an equal regard to the interests and legitimate expectations of both parties, and a successful party should in general be entitled to regard a tribunal's decision on a substantive issue as final (subject, of course, to appeal)...[23]In Phipps v Priory Education Service Ltd [2022] EAT 129, the EAT stated, at paragraph 48: The test for whether reconsideration may take place is quite strict, which is appropriate given the usual expectation of finality in litigation. It is that reconsideration should be “necessary” in the interests of justice. The interests of justice are not limited to the point of view of the person claiming reconsideration. The interests of the other party or parties must also be taken into account, as must the interests of the tribunal system, which has limited resources to be shared appropriately between all those who need them.
Conclusions
[24]I have given careful consideration to the submissions of both parties, the documents on file, and the authorities referred to above.[25]I accept that the Claimant felt he required legal representation to pursue his claim, and that he made at least some attempts to secure representation between February 2021 and April 2022. However, it is not clear what happened after the contact from Kesar & Co on 6 July 2021, which states that a legal aid appeal was on foot, and as the Respondent says, there appears to have been no attempt to obtain legal representation between November 2021 and March 2022, despite the fact that the Tribunal wrote to the parties giving a hearing date on 20 December 2021, and making directions that needed to be complied with by February 2022. I note that the Claimant managed to secure legal representation within three days of his claim being struck out in April 2022.[26]I also accept that English is not the Claimant’s first language and that he does not have a technical legal vocabulary. I have reviewed the limited documentation available to me evidencing the Claimant’s abilities in English. I can see that he corresponded with Kesar & Co Solicitors in English on 5 July 2021, and although there are some errors, the email is clear. The same is true of the Claimant’s comments in response to the Respondent’s email of 16 May 2022, which are stated by his solicitor in the covering email to be the Claimant’s own comments. In particular, the Claimant is able to explain in a fully comprehensible way his standard of English, his reasons for not responding to correspondence, and his view that his claim does have good prospects of success. It also appears that the Claimant understood the points being made by the Respondent.[27]There is no medical evidence to support the Claimant’s assertion that attending a Tribunal hearing would cause a recurrence of his migraines. Furthermore, as the Respondent notes, an interpreter was booked for the hearing so the Claimant would not have had to communicate in English.[28]I accept the Respondent’s submission that there is no evidence to suggest that the Claimant did not understand the Tribunal’s communications. I also accept the Respondent’s submission that there is no good reason why the Claimant could not have responded to the Tribunal or the Respondent to state that he was seeking representation or (if this was indeed the case) that he did not understand what he was required to do.[29]The Tribunal file shows that the Claimant was not in touch with the Respondent or the Tribunal at all between 17 May 2021 and the strike out judgment on 12 April 2022. Although I understand the difficulties faced by the Claimant as a litigant in person attempting to deal with a claim in a foreign language, for the reasons I have given above, I do not consider that the Claimant has provided an adequate explanation for this period of complete silence. This is particularly so given that, during this period, the Claimant received numerous pieces of correspondence from the Respondent and the Tribunal, including an application from the Respondent seeking to strike out his claim, and a letter from the Tribunal requiring him to show cause as to why his claim should not be struck out.[30]I accept that this lengthy period of silence has caused the Respondent to incur costs, both in chasing the Claimant and in making preparations for a full hearing that, owing to the Claimant’s failure to comply with directions, did not go ahead. The Claimant’s silence has also placed an additional burden on the limited resources of the Tribunal system.[31]I have also taken into account the need for finality in litigation. This claim was commenced in January 2020, and it was not actively pursued by the Claimant between May 2021 and April 2022. The Claimant was given numerous opportunities both by the Tribunal and the Respondent to explain his position over that period but he did not do so. In the absence of a clear and full explanation from the Claimant for his failure to pursue his claim over a period of 11 months, and taking into account the overriding objective and the legitimate expectations of both parties, I place significant weight on the need for finality in considering this application.[32]For these reasons, I do not consider that it is necessary in the interests of justice to review or to vary the decision of Regional Employment Judge Freer to strike out the Claimant’s claim. I therefore confirm that original decision. I should make clear that, in reaching this conclusion, I have placed no weight on the Respondent's submissions as to the prospects of the underlying claim, as I do not consider that I have sufficient information to reach a view on this point.[33]The Respondent has made an application for costs, which was not listed for determination today. I will make separate directions for consideration of that application.[1]The Claimant’s claim for disability discrimination was submitted on 8 January 2020 and was fully resisted by the Respondent in an ET3 submitted on 7 February 2020. The Claimant’s claim was struck out, on the basis that it had not been actively pursued, by Regional Employment Judge Freer on 12 April 2022, a week before a four-day full hearing was due to commence. The Claimant applied for a reconsideration of that decision on 19 April 2022. As a result of REJ Freer’s transfer to a different region, that reconsideration application was considered by me on the papers. I refused the application.[2]Following on from the strike-out decision, on 6 May 2022, the Respondent made an application for costs. That application was not listed to be determined together with the reconsideration application, and I made directions for the parties to provide any relevant additional information, and to confirm whether they were happy for the costs application to be determined on the papers. Both parties confirmed that this was the case.[3]The Claimant has appealed against the reconsideration decision; that appeal is at an early stage of the process and it is not yet clear whether it will proceed to a full hearing. The Claimant has implied in his signed statement that determination of the costs application could be postponed until after the appeal process is complete. However, in view of the length of time that has already elapsed since the decision to strike out the claim and my reconsideration decision, and the likely further delay before any definitive decision is made in the EAT, I consider it to be in the interests of justice to determine the costs application at this stage, rather than to await the outcome of the appeal process. Documents[4]For the purposes of determining this costs application, I have been supplied with the following documents on behalf of the Respondent: a) Respondent’s costs application of 6 May 2022, attaching 9 documents including statement of costs; deposit order application; emails to the Claimant and his former representatives regarding the prospects of his claim and informing them of an intention to seek costs should the claims fail; and emails chasing the Claimant for a response in connection with the directions preparing for the full hearing. b) Respondent’s email of 2 November 2022 confirming that it wishes to pursue its costs application and requesting that it be dealt with on the papers. c) Respondent’s email of 7 December 2022 requesting that the application be dealt with despite the Claimant’s appeal to the EAT.[5]I have also been provided with the following documents on behalf of the Claimant: a) An email from the Claimant’s solicitors dated 6 December 2022 informing the Tribunal that the Claimant is appealing the reconsideration decision. b) An email from the Claimant’s representatives dated 20 January 2023 confirming that they are happy for the matter to be dealt with on the papers and attaching a signed statement from the Claimant; his Universal Credit Account payments and his last three months of bank statements.[6]In addition, I have reviewed the ET1, ET3, strike-out judgment and my reconsideration judgment. Factual Background[7]This factual background is primarily taken from my reconsideration judgment, with additional points taken from the more recent emails from both parties referred to above.[8]The Claimant was employed by the Respondent as a bus driver, from 5 November 2018 to 24 September 2019. As set out above, the Claimant’s claim for disability discrimination (specifically, discrimination because of something arising from disability under s. 15 Equality Act 2010, and a failure to make reasonable adjustments under s. 20 – 21 EqA 2010) was submitted on 8 January 2020. The disability relied upon was migraine, from which the Claimant said he began to suffer in April 2019. Essentially, the Claimant claimed that a requirement to work night shifts placed him at a disadvantage because of his alleged disability, and that the Respondent should have amended his hours as a reasonable adjustment. He also claimed that placing him on statutory sick pay and dismissing him constituted unfavourable treatment because of something arising as a consequence of his disability (namely the Respondent’s concern that he would have a migraine whilst driving). At that time, the Claimant was represented by United Voices of the World Union.[9]The Respondent entered a response denying all claims on 7 February 2020. In the response, the Respondent argued that the Claimant’s claims should be struck out as having no reasonable prospect of success, on the basis that any migraines could not be shown to be “long term”. In the alternative, the Respondent requested a deposit order. The Respondent denied that it had knowledge of any disability; that the Claimant was placed at a substantial disadvantage and/or that the proposed adjustments would have alleviated any such disadvantage. The Respondent also denied that the provision of statutory sick pay was unfavourable treatment, and argued that the Claimant’s dismissal was a proportionate means of achieving a legitimate aim. According to the ET3, the Claimant’s gross wage was £481.95 per week, which equates to around £25,000 per annum.[10]A telephone case management hearing was listed for 13 July 2020. Ahead of that hearing, the Respondent asked first that there be an open preliminary hearing to consider whether the claim should be struck out as having no reasonable prospect of success, and then on 18 June 2020, modified its request to ask instead that consideration be given to making a deposit order at the telephone case management hearing.[11]It was intended that this application be considered at the case management hearing, held as planned on 13 July 2020, but there was insufficient time to deal with it. The case was to be listed for a three-day hearing and directions were made, but no hearing date was listed. The Respondent was to make any application for a deposit order in writing.[12]The Respondent made its written application on 11 August 2020. The Claimant’s representative (still United Voices of the World Union) resisted the application by email dated 25 August 2020.[13]There was a slight delay on the part of the Claimant’s then representatives in complying with the directions made on 13 July 2020; however, on 28 August 2020, the Claimant’s representative provided a signed disability impact statement, a letter from his GP and amended Particulars of Claim.[14]The Respondent submitted an amended response on 1 September 2020.[15]On 12 October and 9 November 2020, the Respondent’s representatives sent chasing emails to the Tribunal regarding the deposit order application and the listing of the full hearing.[16]On 20 November 2020, having not heard from the Tribunal, the Respondent wrote to the Claimant’s then representative. The email explained that the Respondent had applied for a deposit order rather than a strike out “simply because it is rare for the Tribunal to strike out a discrimination claim at such an early stage in proceedings, before being able to review the evidence”, but that it nevertheless considered the claims to have no reasonable prospect of success, and set out the basis for this assessment. The email warned the Claimant that if his claims were dismissed, the Respondent would seek its costs which totalled £10,205 plus counsel’s fees of £1,500 to date, and were likely to total £17,500 by the end of the case.[17]On 3 February 2021, the Tribunal wrote to the parties to inform them that a further telephone preliminary hearing would be listed to deal with the outstanding applications and list the final hearing. On 27 February 2021, United Voices of the World Union came off the record for the Claimant and provided his contact details to the Respondent and the Tribunal.[18]The telephone preliminary hearing was listed for 18 May 2021 but was postponed due to lack of judicial resource.[19]On 20 May 2021, the Respondent wrote to the Claimant to inform him that it intended to dispense with the application for a deposit order given that most of the preparation for the final hearing had been completed, and suggesting a directions timetable. The Claimant did not respond to this email.[20]On 4 June 2021, the Respondent wrote to the Tribunal, with the Claimant copied in, setting out the points made in its email to the Claimant of 20 May 2021, and noting that it had not heard from him. There was no response from the Claimant to this email.[21]A telephone preliminary hearing was listed for 14 January 2022, and in response to this, by email dated 26 July 2021, the Respondent renewed its request that orders be made without the need for a telephone hearing. The Claimant was again copied into the email, but did not respond. On 2 August 2021, the Respondent wrote to the Claimant informing him that if the PH listed for January 2022 did go ahead, the deposit application might be pursued, and advising him again that were the claims to be dismissed, the Respondent reserved the right to pursue a costs application. The Respondent advised that its costs (including counsel fees) to date were around £16,250, and that if the matter was pursued to hearing they were likely to total £21,000.[22]The Tribunal wrote to the parties on 15 September 2021, requesting that a list of issues and a time estimate for the hearing be provided before considering the Respondent’s request. On the same date, the Respondent provided the list of issues which had been agreed with the Claimant’s former representatives in September 2020, provided details of the witnesses the parties proposed to call (again based on the Claimant’s previous case management agenda) and a time estimate.[23]On 20 December 2021, Employment Judge Andrews wrote to the parties confirming the vacation of the hearing on 14 January 2022 and that the claim had been listed for a 4 day hearing (in view of the Claimant’s need for an interpreter). She also made directions that the parties should exchange witness statements within 8 weeks of the date of the letter and that the Claimant should provide an updated Schedule of Loss and copies of any evidence regarding his efforts to mitigate his losses six weeks prior to the final hearing. On the same date, a Notice of Hearing was sent to the parties listing the hearing for 19 – 22 April 2022.[24]On 11 February 2022, the Respondent wrote to the Claimant to make arrangements for witness statement exchange on 14 February 2022. Having received no response, the Respondent wrote again to the Claimant on 15 February 2022, expressing concern at the lack of contact from the Claimant and asking him to notify the Respondent and the Tribunal if he no longer wished to pursue his claim.[25]On 1 March 2022, the Respondent’s representatives wrote to the Tribunal to request that the Claimant’s claims be struck out, on the basis that he was no longer actively pursuing them. The email states that the Respondent had contacted the Claimant regarding witness statement exchange on 11 and 15 February 2022, but had received no response, and in fact had not heard from the Claimant since 17 May 2021. This email and a further email sent on 8 March reiterating the request were copied to the Claimant.[26]Also on 1 March 2022, the Respondent wrote to the Claimant to inform him that if he failed to attend the hearing, or if the hearing was postponed at short notice, the Respondent would apply for its wasted costs in the sum of counsel’s brief fee, which was likely to be £2,500 - £3,000. The Respondent asked the Claimant to make contact as soon as possible in relation to the exchange of witness statements. The Respondent also advised the Claimant (as it had done in previous emails) that he could seek free advice from the Citizen’s Advice Bureau.[27]On 4 April 2022, the Tribunal wrote to the Claimant stating that it was considering striking out his claim because it had not been actively pursued. The Claimant was informed that, if he wished to object to this proposal, he should give his reasons in writing or request a hearing by 11 April 2022.[28]On 6 April 2022, the Tribunal sent an information sheet about the full hearing to both parties, informing them that it would go ahead in person and giving information about preparing for the hearing.[29]On 12 April 2022, having heard nothing from the Claimant, Regional Employment Judge Freer struck out the Claimant’s claim because it had not been actively pursued. On the same date (before receiving the strike out judgment), the Respondent emailed the Claimant, informing him that it reserved the right to apply for costs and attaching a costs schedule.[30]On 19 April 2022, the Claimant’s new representative, Mr Munir, applied for a reconsideration of the strike out judgment, an application which I ultimately refused. Submissions of the Parties[31]The Respondent’s application for costs is made on the basis that the Claimant acted unreasonably in bringing the proceedings and/or in the way they have been conducted; or alternatively that the claims had no reasonable prospect of success. The Respondent’s submissions can be summarised as follows:(a) the Claimant’s claim had no reasonable prospect of success because he relied upon the impairment of “migraines” and there was no evidence to support this disability given that the first entry for “headaches” in his medical records was on 3 June 2019, and he had been dismissed on 24 September 2019. He had no reasonable prospect of showing that any substantial adverse effect was long term, and in any event, there was also the issue of knowledge;(b) it had been made clear to the Claimant from the outset that the Respondent considered the claims to be without any reasonable prospect of success (the Respondent referred to the communications set out above);(c) the Claimant had failed actively to pursue his claim by not complying with Orders or responding to correspondence (the Respondent again referred to the communications set out above);(d) the Claimant’s conduct led the Respondent to incur significant costs as it had little choice but to fully prepare for the final hearing, including incurring counsel’s full brief fee as he had to be instructed ahead of the bank holiday preceding the final hearing listed for 19 – 22 April 2022;(e) the Respondent had incurred total fees of £22,303 (including counsel’s fees of £4,750), but claimed only the rule 78(1) limit of £20,000.[32]The Claimant’s submissions in response to the application are contained within his signed witness statement and the exhibits attached to it and can be summarised as follows: a) the costs application was unfair because the Claimant had appealed and was waiting for the hearing, although he agreed that the application could proceed on the papers; b) the Claimant was unemployed and receiving Universal Credit benefit, which was insufficient for his needs, and he had to borrow money from friends and family members when he had no money; c) the Claimant had been unable to obtain further employment because his dismissal had reminded him of when he was bullied at school for his English and he felt in any interview he would be treated in the same way.[33]The documents adduced by the Claimant show Universal Credit payments of £334.91 per month from June 2022 to December 2022. The payment for January 2023 is lower at £318.16 Prior to June 2022, the payments were £324.84 per month, stretching back to October 2021. Between December 2020 and October 2021 the payments were in varying amounts between £401 and £411 per month. Before that, and going back to May 2020, the sums were either £174 or £118 per month. The Claimant’s bank statements show only his universal credit payments being paid in, and limited sums going out, leaving a balance of a few hundred pounds at most, and pennies at least.
The Law
[34]Rule 76 of the Employment Tribunal Rules of Procedure provides as follows, so far as is relevant:(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that - a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; b) any claim or response 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 the relevant hearing begins.(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.[35]Rule 78(1) permits a cost order under which the paying party is ordered to pay the receiving party a specified amount not exceeding £20,000 in respect of the costs of the receiving party.[36]Rule 84 provides that in deciding whether to make a costs, preparation time or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s ability to pay.[37]The principles to be applied in determining whether a costs award should be made were helpfully summarised by the Court of Appeal in Sud v LB Ealing [2013] ICR D39, as follows: 75. On the basis of those authorities, although an award of costs against a paying party in the employment tribunal is an exceptional event, the tribunal should focus principally on the criteria established in rule 40 [now rule 76]. In the context of the present case, the tribunal needed to consider whether the claimant's conduct of the proceedings was unreasonable and, if it so concluded, it was necessary for the court to identify the particular unreasonable conduct, along with its effect. This is not a process that entails a detailed or minute assessment, but instead the court should adopt a broad brush approach, against the background of the totality of the relevant circumstances.[38]Thus whilst there need not be a precise causal link between any unreasonable conduct found and the costs claimed/awarded, the Tribunal should look at the whole picture of what has happened in the case, and ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case, identify the conduct, what was unreasonable about it and any effect it had (Yerrakalva v Barnsley MBC [2012] ICR 420 at paragraph 41).[39]In AQ Ltd v Holden UKEAT/0021/12, the EAT considered the principles to be applied where costs were sought against an unrepresented litigant, and held, at paragraphs 32 - 3: 32 The threshold tests in rule 40(3) [now rule 76(1)] are the same whether a litigant is or is not professionally represented. The application of those tests may, however, must take into account whether a litigant is professionally represented. A tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Lay people are entitled to represent themselves in tribunals; and, since legal aid is not available and they will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves. Justice requires that tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. As Mr Davies submitted, lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. Tribunals must bear this in mind when assessing the threshold tests in rule 40(3). Further, even if the threshold tests for an order for costs are met, the Tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice. 33. This is not to say that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of Objectivity...[40]In Herry v Dudley MBC [2017] ICR 610, the EAT gave the following guidance in relation to the discretion to take into account a party’s means under rule 84: 38 It is well established that rule 84 does not require the tribunal to take account of the paying party’s ability to pay. It has an open discretion whether to do so; but, if it is asked to take account of ability to pay and declines to do so, it should explain why. The tribunal may, for example, decline to take ability to pay into account if it considers that it does not have satisfactory evidence of means (see Jilley v Birmingham and Solihull Mental Health NHS Trust (unreported) 21 November 2007, para 53) or if there is outstanding litigation and it would be just to permit recovery of costs from any future award to the paying party: see Vaughan v Lewisham London Borough Council [2013] IRLR 713, para 30. 39 If the tribunal decides to take account of the paying party’s ability to pay, its task will be to make an assessment of the paying party’s means and reflect those means in its assessment of the amount the paying party should pay: see Arrowsmith v Nottingham Trent University [2012] ICR 159, para 38. It is, however, not limited to an assessment of the paying party’s current means; it may have regard to the prospect that these means may improve: Arrowsmith, paras 38—39.
Conclusions
[41]In determining the Respondent’s application, I first have to consider whether either of the “threshold” tests for exercising the discretion to award costs is met. No Reasonable Prospect of Success[42]I consider first the question of whether the Claimant’s claim had no reasonable prospects of success. Having considered the Particulars of Claim and the Grounds of Resistance, as well as the submissions made by the Respondent in support of a deposit order and related documents, I do not consider that the claim had no reasonable prospect of success.[43]The principal basis on which this assertion is made is that the Claimant had no reasonable prospect of showing that he was a disabled person on or before 24 September 2019, when he was dismissed. The Respondent points to the fact that the Claimant asserts his migraines began only in April 2019, and that the first supportive medical evidence comes from an attendance at A&E on 3 June 2019. There is an implied suggestion in the deposit order application that the migraines were a pretext for an attempt by the Claimant to change his hours but this is nowhere made explicit, and is not referred to in the costs application.[44]Whilst I accept that, at the time of the Claimant’s dismissal, his history of migraine had not lasted 12 months, I note from the deposit order application that he had been given a certificate by his GP exempting him from night shifts owing to “history of migraine triggered by lights, noted recurrent attacks after night shifts”. Part of the Respondent’s own reasoning for dismissing the Claimant was explained in the deposit order application to be that he could not safely drive buses as he might in future experience a migraine glare during dark periods of the day. The question for the Tribunal would have been whether, at the point of dismissal, any substantial adverse effect on normal day to day activities could well have lasted beyond a year. Considering the documents before me, I cannot say that the Claimant had no reasonable prospect of establishing this; the Respondent itself appears to have considered that the effects were likely to last into the long term. Similarly, it cannot be said that the Respondent had no actual or constructive knowledge of the Claimant’s condition.[45]The Respondent does not, in its costs application, refer to any other bases on which I should find that the claim had no reasonable prospect of success. I note that in the deposit order application it was argued that there were no reasonable adjustments the Respondent could make; that the Claimant was paid the sick pay to which he was contractually entitled, which could not be unfavourable treatment, and that he could not, with his alleged condition, safely drive buses so dismissal was proportionate. I do not consider that I can safely conclude, in the absence of more detailed evidence, that any of these claims had no reasonable prospect of success. As with most discrimination claims, they required full consideration of the evidence in order to determine their prospects.[46]I therefore conclude that this threshold condition is not met. Unreasonable conduct of proceedings[47]However, I am of the view that the Claimant’s conduct of these proceedings has been unreasonable. This is essentially for the reasons given in my judgment on reconsideration of the strike-out decision. Although I note that the Claimant made some efforts to secure legal representation between February 2021 and April 2022, on the evidence before me, there were gaps in those attempts between November 2021 and March 2022. Fundamentally, however, the Claimant did not contact either the Respondent or the Tribunal between May 2021 and the date on which his claim was struck out in April 2022, which was only one week before the listed full hearing. Although I accepted, and accept, that English is not the Claimant’s first language, the evidence before me demonstrates that the Claimant was able to communicate clearly in English (possibly with some assistance). I have still been provided with no good reason as to why he did not contact the Tribunal and the Respondent in response to their many communications over this period, if only to explain the difficulties he was having in securing representation.[48]I consider the Claimant’s failure to contact either the Respondent or the Tribunal, particularly during the latter part of this period (between February and April 2022) when preparations were being made for the full hearing, to have been unreasonable. In particular, I consider it unreasonable for the Claimant to have failed to respond to the Respondent’s email of 1 March 2022, chasing witness statement exchange and explaining that an application was to be made to strike out the Claimant’s claim, and the Tribunal’s letter of 4 April 2022 asking the Claimant to show cause why his claim should not be struck out. Should a costs order be made?[49]I have next to consider whether I should exercise my discretion to make an order for costs.[50]In doing so, I take into account the fact that I have found the Claimant to have acted unreasonably in failing to contact the Respondent or the Tribunal over a significant period of time.[51]It does appear based on the evidence before me that the Respondent has incurred costs as a result of this silence. I note that between August 2021 and the date of its application, the Respondent appears to have incurred around £6,000 in costs. I also note that in its email of 1 March 2022, the Respondent informed the Claimant that if the final hearing was postponed as a result of his conduct, it would seek counsel’s brief fee of £2,500 - £3,000 (in the event it appears the brief fee was £2,500, from the costs schedule).[52]I have considered the Claimant’s ability to pay any costs award. I do not consider that I have a full account of the Claimant’s finances. I note that the Claimant lives in a flat, but I have no indication of whether the flat is owned or rented by him; if rented, whether that is on a private basis or paid for through housing benefit. I have seen bank statements showing income only from Universal Credit, but I do not know whether this is the Claimant’s only bank account. However, on the limited information with which I have been provided, I do accept that, at least up to January 2023, the Claimant was unemployed and in receipt of Universal Credit, and thus that he was receiving limited income as set out above. This is a factor which I have taken into account in deciding whether to make a costs order.[53]I also note that when working for the Respondent, the Claimant earned around £25,000 per annum. He has a driving licence sufficient to allow him to drive buses. His reason for not obtaining further employment appears to be a fear that he would be criticised for his limited English, but this was not, as far as I can see, a factor in his dismissal from the Respondent. I consider it reasonable to assume that the Claimant does have a continuing earning capacity at a similar level to the earnings he had with the Respondent. Following Vaughan and Arrowsmith, this is a matter I may take into account in considering whether to make a costs order, and the amount of any such order.[54]I have decided that it is appropriate to make a costs order in this case. The Claimant’s conduct was unreasonable. The Respondent has incurred costs as a consequence. I do not have a full account of the Claimant’s means, although I accept his income is currently limited, but I consider he does have a continuing earning capacity which may mean it will improve in future. The amount of the costs order[55]In considering the appropriate amount of costs to award, I have taken into account the Respondent’s costs schedule, the nature and effect of the unreasonable conduct I have found to have occurred, and the evidence referred to above as to the Claimant’s ability to pay.[56]As noted above, it appears from the Respondent’s communications that around £6,000 of its costs were incurred over the period of silence, including counsel’s brief fee for the hearing on 19 – 22 April 2022, which was only vacated when the claim was struck out on 12 April 2022.[57]I have found that over the period from May 2021 – April 2022, the Claimant did make efforts to find legal representation. I can accept that, for at least part of this period, whilst he was doing so, it was perhaps reasonable for him to wait until he had received legal advice to contact the Respondent and the Tribunal. However, certainly by the point in February – April 2022 when he was due to be exchanging witness statements and providing documents to the Tribunal, it was wholly unreasonable for him to remain silent.[58]It is not clear from the Respondent’s costs schedule what precise costs were incurred over the period between February and April 2022. However, it is clear that, as a result of the late vacation of the full hearing, the Respondent unnecessarily incurred counsel’s brief fee of £2,500. I am aware that it is not necessary for there to be a direct causal connection between unreasonable conduct and the relevant costs in order for an award to be made. However, taking into account the nature and effect of the Claimant’s unreasonable conduct, it appears to me that, subject to consideration of the Claimant’s ability to pay, the brief fee incurred by the Respondent is closely linked to what I have found to be the particularly unreasonable phase of the period of silence. I also note that it is the sum the Respondent suggested should be payable were the hearing to be vacated at late notice in its email of 1 March 2022.[59]Based on the information with which I have been provided about the Claimant’s income, it does not appear that he currently has sufficient funds to pay a costs order of £2,500. However, I bear in mind that I have been provided with no information about any capital the Claimant may have, and no information about his housing arrangements. I also take into account the fact that the Claimant would appear to have a continued earning capacity in the region of £25,000, as noted above. £2,500 would be 10% of the Claimant’s gross income were he to resume employment at a similar level. That would be a challenging, but not unachievable amount to pay over a reasonable period.[60]Taking into account all the circumstances, I consider it appropriate to order the Claimant to pay the Respondent’s costs in the sum of £2,500.
Conclusions
[1]There is no reasonable prospect of the original decision being varied or revoked, because the arguments put forward in support of reconsideration by the claimant were either taken into consideration in determining the claim, or alternatively, could have been raised by the claimant when given an opportunity to provide supporting written/documentary evidence ahead of the determination of the costs application on the papers, and no explanation has been provided as to why they were not.[2]In particular:2.1 The Claimant’s reconsideration application does not address the primary reason for my conclusion that his conduct was unreasonable, namely his failure to respond to communications from the Respondent or the Tribunal at all during the period from May 2021 to April 2022.2.2 The information provided about the Claimant’s means was available and thus could and should have been provided prior to the original decision, and does not in any event address the point that the Claimant continues to have earning capacity meaning his income may increase in future.