Mr D Eiugbadebo v Abellio London Ltd: 2301486/2020
EMPLOYMENT TRIBUNALS
Case No 2301486/2020
Between
Mr D EiugbadeboClaimantAbellio London LtdRespondent
Before
Employment Judge C SharpMs S Walkerdine (instructed by solicitor) for respondentDate 3 December 2021
JUDGMENT
Following discussion with the parties, the judgment of the Tribunal is that:[1]The race discrimination claims in their entirety are dismissed following a withdrawal of the claim by the claimant;[2]The claim under the “Blacklist Regulations” 2010 are dismissed following a withdrawal of the claim by the claimant;[3]For the avoidance of doubt, the only claim proceeding to the final merits hearing is a claim under s.10-s.11 of the Employment Relations Act 1999.[1]The respondent failed to comply with its legal obligation to permit the claimant to be accompanied to a disciplinary hearing by his chosen companion in breach of section 10 of the Employment Relations Act 1996 and the tribunal declares accordingly.[2]The respondent is ordered to pay the claimant compensation of £2.
REASONS
The Evidence.
[1]The tribunal had before it a bundle consisting of 108 pages, an amended statement of agreed facts, written submissions from both parties, a statement of Mr F. Neckles, a statement of the claimant, and a bundle of authorities.
The Issues
[2]The issues were set out in a case management order and associated judgement dated 18 February 2021 by Employment Judge Sharp.[3]It is not necessary to repeat those issues as the respondent, before the tribunal, expressly admitted a breach of its obligation under section 10 but contended no award should be made in the claimant’s favour.[4]It was agreed with the parties that the claimant was now only pursuing a complaint under section 10 and 11 of the Employment Relations Act 1999. There was no complaint being pursued under section 12 of the same act.
The Facts
[5]The claimant has been employed by the respondent as a bus driver since 25 June 2018. He remains in their employment[6]The respondent is a bus company operating a fleet of over 700 buses and employing approximately 2500 staff in central, south and west London. It also operates North Surrey.[7]The claimant presented a claim form on 09 April 2020.[8]The claim form was presented on the claimant’s behalf by Mr F . Neckles.[9]For reasons that will become clear there are two Mr Neckles, brothers, and for this reason the tribunal will include the initial of their respective given names for the purposes of clarity.[10]The Neckles brothers are senior officials in the PTSC union.[11]In the claimant’s claim form numerous complaints were made under various statutory provisions, including under the Equality Act 2010, what are commonly known as the blacklisting regulations and under section 10, 11 and 12 of the Employment Relations Act 1999.[12]Suffice to say, following the hearing before Employment Judge Sharp on 18 February 2021 the only complaint recorded as proceeding was under section 10 and 11 of the Employment Relations Act 1999.[13]In essence the surviving claim relates to the respondent’s refusal to allow Mr F . Neckles to accompany the claimant to a disciplinary hearing on 29 January 2020.[14]The purpose of the hearing was to answer allegations of alleged misconduct with regard to two complaints from members of the public.[15]The claimant attended the hearing on 29 January 2020 accompanied by Mr F Neckles. The claimant was informed that his chosen representative was not permitted to enter the respondent’s premises and could not represent him.[16]The claimant was informed he could be represented by another member of the PTSC, another union official or by a fellow worker but not by Mr F Neckles or his brother Mr J. Neckles..[17]The hearing was adjourned to allow the claimant to obtain alternative representation. The respondent was not opposed to workers been represented by a trade union, including the PTSC, simply to, two particular members of that union, the Neckles brothers.[18]The hearing was eventually rearranged for 26 February 2020 when the claimant was accompanied by another official of the PTSC union, Ms Reece-Bartlett[19]The outcome of disciplinary hearing was the claimant received a warning, in writing by letter dated 02 March 2020 (108), described as “informal”[20]The claimant did not suffer any financial loss as a result of the delay in the rearrangement of the disciplinary hearing.[21]Whilst not the claimant’s first choice he was permitted representation at the disciplinary hearing by a member of his chosen union.[22]The reasoning for the respondent’s refusal requires careful analysis. It is important to emphasise that this case concerned representation by Mr F Neckles.[23]Mr F Neckles was formerly employed by the respondent until 2013. He was involved in tribunal proceedings between himself and the respondent ( case references 2344649/2013 and 2360882/2013.)[24]The claims of Mr F Neckles were struck out by Employment Judge Lamb who found that Mr F. Neckles had fraudulently created a falsified witness statement to further his claim against the respondent.[25]There was also a finding of threats by Mr F Neckles to another employee ( see para 16 and 20 of Ghahoua below)[26]In that hearing Mr F Neckles was represented by his brother Mr J. Neckles. A costs order was made, ultimately in the sum of £20,000.[27]As a result of the above Mr F. Neckles had been banned from the respondent’s premises because the respondent believed he was not to be trusted and had threatened at least one member of the respondent’s staff.
The Law
[28]The tribunal applied the following legal principles.[29]Section 10 of the Employment Relations Act 1999 provides as follows: – (1) This section applies where a worker- (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing (2A) where this section applies, the employer must permit the worker to be accompanied at the hearing by one companion who – (a) is chosen by the worker; and (b) is within subsection (3) Subsection 3 provides as follows: – (3) A person is within this section if he is- (a) employed by a trade union of which he is an official within the meaning of section 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992 (b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings, or (c) another of the employers workers.[30]Section 11 subsections (1) and (3) provide as follows: “(1) A worker may present a complaint to an employment tribunal that his employer has failed, or threatened to fail, to comply with section 10(2) or (4). […] (3) Where a tribunal finds that a complaint under this section is well-founded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks' pay.”[31]The tribunal has noted the statutory wording in subparagraph three of “not exceeding”. It took it to mean the two weeks pay was the maximum it could award. It was therefore able to order, if appropriate, a lesser sum.[32]Two weeks pay is subject to the statutory maximum contained in section 227 (1) of the Employment Rights Act 1996,[33]In addition to the statutory provisions there are two relevant decisions of the Employment Appeal Tribunal which this tribunal took into account in his
deliberations.
[34]The first was Toal and anor v GB Oils Ltd 2013 IRLR 696, EAT. Toal established that although section 10 provides that a worker is only entitled to be accompanied if he or she ‘reasonably requests’ it, the reasonableness criterion does not extend to the identity of the companion. So long as the companion meets one of the definitions in S.10(3), the employer must agree to that companion.[35]At paragraph 16 the EAT said: – “We will first take Mr Gloag's [ counsel for the respondent] first point that the word ‘reasonably’ in section 10(1)(b) applies both to the choice of representative and to the requirement to be accompanied. Like the Tribunal, we reject this submission. We agree with the Tribunal that Parliament could easily have provided by express words for requiring the choice of companion to be reasonable, as well as the requirement to be accompanied. The fact that it did not do so, and then in the next subsection obliged an employer to permit the worker to be accompanied by a companion chosen by the worker, is a strong counter indicator to Mr Gloag's contention. It is easy to understand why Parliament would have legislated as it did. This is a right conferred upon the worker. It is possible to conceive of circumstances in which an employer might wish to interfere with the exercise of that right without proper reason in a manner that would put the worker at a disadvantage. Consequently, Parliament has, in our view, legislated for the choice to be that of the worker, subject only to the safeguards set out in subsection (3) as to the identity or the class of person who might be available to be a companion.”[36]The matter was revisited in Roberts v GB Oils Ltd 2014 ICR 462, EAT. The EAT upheld the principle set out in Toal, although not without some misgiving, about the potential effect of Toal where, for example, the chosen companion had a history of disruptive behaviour. The EAT could envisage circumstances where difficulties would arise if the employer was unable to veto the choice of the workers companion.[37]Despite those misgivings the EAT held that the word "reasonably" in s.10 applied to the reasonableness of the request to be accompanied and not to the identity or characteristics of the chosen companion.[38]His Honour Judge Burke QC said, however at paragraph 25: – Ms Annand [counsel for the claimant] has persuaded us that the safeguard for an employer against wanton selection of a companion is that set out in subsection (3) and in appropriate consideration of compensation. [ this tribunal’s emphasis][39]The tribunal were taken to a number of first instance decisions. The starting point for this tribunal is that it is not bound by any of those decisions. Reference was made to Gnahoua -v- Abellio London Ltd 2303661/2015) and Batchelor -v- Abellio London Ltd (2301635/2015).[40]It was common ground that in those decisions it was found the respondent had denied the respective employees the right to be accompanied by either Mr F Neckles or his brother Mr J Neckles. Representation was however permitted by anyone else other than the above-named individuals in accordance with section 10.[41]The tribunal is determined that each respective employee had suffered no detriment and made a nominal award of £2 in each case.[42]It is arguable that Gnahoua was a more serious case than that of this claimant as Mr Gnahoua did not arrange alternative representation.[43]The tribunal was also taken to Hassan -v- Abellio London Ltd 2303655/2015 In that case the tribunal made an award of £950 in respect of more than one breaches of representation in disciplinary proceedings involving the same employee.[44]The tribunal considered paragraphs 39 to 44 were instructive.39. We considered our finding at liability stage, paragraph 41, when the question was asked as to why the respondent did not hold a meeting off site. Ms Murphy’s evidence to us was that because of the threatening behaviour, members of the respondent’s staff, including herself, were not prepared to be put in such a situation. The findings in Gnahoua (paragraph 25) was that Mr John Neckles was not accused of or involved in any intimidation himself but he was involved in vexatious conduct.40. The ban applied by the respondent was to both Mr Francis and Mr John Neckles. The respondent did not have a safety issue in relation to Mr John Neckles, as he was not accused of or involved in any intimidation but the ban applied to him nevertheless based on the respondent’s view of his dishonesty.41. The ban applied by the respondent was to both Mr Francis and Mr John Neckles. The respondent did not have a safety issue in relation to Mr John Neckles, as he was not accused of or involved in any intimidation but the ban applied to him nevertheless, based on the respondent’s view of his dishonesty.42. We find that if the ban had been applied to Mr Francis Neckles only, this would have caused us to consider a much lower award.[this tribunal’s emphasis] However as it applied to both Mr John and Mr Francis Neckles, we have concerns about the respondent’s attitude towards the statutory right to be accompanied in this case and their blanket ban on Mr John Neckles who has not been accused of the same behaviour43. …. 44. …..We accept that there was some reason for the making of the ban but this needed more objective and careful consideration than simply applying a blanket ban against the two brothers when their circumstances (based on the findings of earlier tribunals) were not the same. There was no safety risk in relation to Mr John Neckles either on site or off site. 45.Of course, in this case, the chosen representative for the claimant was Mr J. Neckles. This is a significant material factual difference between this case and Hassan[46]This tribunal was then referred to the decision in Oti -v- Abellio London Ltd 2302404/2017 and 2300276/2018. 47.The tribunal found in Oti breach of section 10 and made an award of £250, although it was not clear to this tribunal how that sum was arrived at other than some brief comments in paragraph 87 and 88. 48.The final case the tribunal was taken to was that of Jimale -v- Abellio London Ltd 2300795/2019. The tribunal only had the remedy judgement and not the liability judgement. Suffice to say that the claimant’s complaint was well-founded but it was not clear to this tribunal whether the requested representative had been Mr F or Mr J. Neckles. An award of £2 was made. 49.The tribunal considered all the above tribunal decisions. None are binding on it. It did not consider there was anything overpoweringly persuasive about them such as to mean that they should be followed. 50.The tribunal therefore approached the case on the basis of both the statute and the two previously referred to judgements of the EAT. 51.The tribunal had sympathy with the respondent. It was not difficult to see why they would wish to bar from their premises a person who another tribunal had found had behaved dishonestly and had also intimidated another employee. The costs order alone gives an indication of how serious the tribunal felt matters were. However the tribunal considered it was bound by Toal. 52.The tribunal noted from Toal that the purpose of an award is compensation for the breach of the statutory provision and not a penalty or fine. 53.It follows the tribunal must therefore assess the loss suffered by the claimant. As the tribunal already noted the claimant suffered no loss other than a delay in his disciplinary hearing when he was then represented by another member of his chosen union. 54.As was made clear in Roberts this tribunal is entitled to take into account in the assessment of an award the particular characteristics of the representative chosen. 55.The tribunal did not accept the respondent’s submissions that no award should be made. It reached that conclusion given the wording of section 11 (3) which makes it clear that where the complaint is well founded the tribunal “shall” make an award 56.The tribunal placed weight on the fact that there was no general refusal by the respondent of representation. It was not acting capriciously. It had a justifiable reason for not permitting Mr F.Neckles on its premises. 57.The tribunal were not attracted to Mr Neckles submission that the test of detriment set out in Shamoon -v- Chief Constable of the Royal Ulster Constabulary 2003 IRLR 285 should apply as that relates to the Equality Act 2010 .This tribunal are not satisfied the same test applies under section 11 of the Employment Relations Act 1999 .Even if it did the tribunal found the claimant suffered no detriment . 58.Nor were the tribunal attracted by the argument that a failure to make substantial award would be a breach of article 11 of the Human Rights Act 1998 (freedom of peaceful assembly) because the tribunal was not satisfied that article 11 was engaged . 59.Even if it was, article 11 is a qualified and not an absolute right. Restrictions may be placed upon freedom of peaceful assembly and association in specified circumstances.. The tribunal considered in respect of Mr F. Neckles the qualification of public safety was engaged and also protection of morals, in the sense that Mr F. Neckles had forged documents for the purpose of tribunal proceedings. 60.If the tribunal were wrong and article 11 was engaged the claimant’s rights were already protected by means of the provisions of section 10 and 11 the Employment Relations Act 1998. 61.Standing back and looking at the matter in the round the tribunal concluded the claimant was entitled to a declaration in his favour and £2 was an appropriate sum. It was appropriate because the claimant had suffered no loss, it was appropriate because representation was permitted and it was appropriate because in line with Roberts the identity of the representative could be taken into account. The tribunal would add it may well have taken a very different view in the size of the award if the chosen companion had been Mr J. Neckles. 29 December 202111 January 2022[47]The claimant’s oral evidence as to his financial position can be summarised as follows.[48]He had the possibility of a financial benefit if his new tribunal claims succeeded.[49]He has worked as a PSV bus driver and as a delivery driver but remains unemployed. Whilst it may well be that the claimant’s employment as a bus driver has been hindered by the alleged reluctance of the respondent to release his Licence for London (and this was an allegation that caught Ms Jones by surprise and upon which she was unable to take instructions. the tribunal considered that if the respondent had indeed retained the Licence for London there was no reason why it would not release the same, given it was in the respondent’s interests that the claimant was earning if a costs order was made against him. Thus there is a realistic possibility the claimant will obtain alternative employment as a bus driver in the near future.[50]The tribunal ( and this was a full panel) considered it was entitled to apply its own industrial knowledge as regards the demand for delivery drivers in London which is high. The claimant drives and can drive delivery vehicles up to 3.5 tons. Again the tribunal considered that there was a reasonable possibility the claimant could obtain alternative employment as a delivery driver in the near future.[51]Whilst the claimant suffers from high blood pressure that was treated by medication and he had been able to work for the respondent driving without any difficulty.[52]The claimant is a married man with three children but now separated from his wife and pays no maintenance. His wife and children remain in the matrimonial home which was rented.[53]The claimant is currently dependent upon financial support from friends and is squatting at the moment. He has a limitation on his passport which prevents him obtaining state benefit.[54]The claimant has a GTC Vauxhall Astra which he valued at £2000.[55]The claimant had no substantial savings or capital assets. He had no outgoings as everything was paid for by friends. Submissions.[56]The tribunal had full regard to both the oral and written submissions made by both parties. The mere fact the tribunal has not referred to each and every argument does not mean they were not given due consideration. The claimant.[57]The principal points advanced on behalf of the claimant were as follows.[58]Firstly it was contended a wasted costs order could not be brought against Mr J Neckles as he did not act for profit.[59]Secondly that costs could not be pursued when a claim has been found to have merit, even though the compensation was nominal. Even at its highest the claimant could only have recovered two weeks’ pay so little weight should be given to the fact there had been a nominal award. The award was within the range of awards the tribunal could have made. An award of costs should have been made against the respondent. (The tribunal noted that no such application had been made by the claimant).[60]Thirdly it was only at the substantive hearing that the respondents conceded a breach of section 10 Employment Relations Act 1999.[61]Fourthly the respondent’s application was frivolous or vexatious and an abuse of process.[62]Fifthly there were previous tribunal awards in the range of £2 to £950 for similar matters so it was not unreasonable to pursue the matter. The fact there had been similar cases was irrelevant as the tribunal had said in its substantive judgement it did not consider itself bound by them.[63]Sixthly the tribunal, at no stage indicated it was only minded to make a nominal award of damages.[64]Seventhly in seeking to pursue costs, the respondent was breaching the claimant’s right under article 6 of the European Convention on Human Rights. A litigant would be dissuaded from pursuing their legal rights if they faced an award of costs if they did not consider they would receive more than nominal damages and a costs order would be contrary to the decision in Shah and Shah [2021] EWHC 1668 QB The respondent.[65]Ms Jones submitted there had been unreasonable and/or abusive conduct by Mr J. Neckles and relied upon the same factual matrix for both the rule 76 and rule 80 application.[66]The respondent has admitted a breach of section 10 at the substantive
hearing.
[67]Mr J. Neckles had been involved in at least three similar cases where only a nominal award of £2 was made. The claimant’s representative must have known that the claimant had suffered no loss particularly as he was accompanied at the adjourned disciplinary hearing by another member of the PTSC union and Mr Neckles knew he had no direct evidence from the claimant to adduce at the substantive hearing as to any loss.[68]Mr J. Neckles had indicated in an email of 02 June 2021 that the claimant was minded to withdraw and therefore knew at that stage the claim had no value but that stance only changed when the respondent indicated it will continue with its contempt of court referral. The fact there was mention of “without prejudice” in the correspondence did not prevent the documents being examined for the purposes of costs and in any event looked at in totality Mr J. Neckles was using that label to perpetrate an unambiguous impropriety.[69]On the assumption Mr J. Neckles was acting on instructions then whilst he had been willing to withdraw his claim the only reason it was then pursued was for Mr J. Neckles benefit and that was not reasonable conduct of the litigation.[70]The claimant had proceeded having been given a costs warning on 01 December 2021.[71]Even if the claimant was unemployed that was no reason not to make a substantial cost order, Vaughan -v- Lewisham Borough Council [2013] IRLR 720.[72]Turning to the rule 80 application Ms Jones made reference to the principles in Ridehaugh -v- Horsefield 1994 CH 205. She said that had Mr J. Neckles been a qualified solicitor or barrister his conduct would have been likely to have led to disciplinary proceedings.[73]Given that almost £60,000 of the PTSC’s income was from “income from court actions “ the tribunal should infer he was acting for profit.[74]Mr Neckles had not produced any evidence he was not acting for profit. She referred to a first instance decision of the tribunal in Henry -v- London General Transport Service Ltd ET2301782/2015 ( but did not produce a transcript). She fairly said that the case involved a determination as to whether Mr Neckles was acting for profit and the tribunal found in his favour, but that case was distinguishable given the information to be found in the annual return of the PTSC. She also referred to the decision of the EAT in PTSC Union -v- JB Global limited ( in administration) UKEAT/0212/2020 which she said was authority for the proposition that Mr J. Neckles and/or the PTSC had to make “a good positive case” that he/they were not acting for profit.
The law
[75]The tribunal applied the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.[76]The starting point is rule 76 which states: – 76.(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or b) any claim or response had no reasonable prospect of success…” 77.The next relevant provision is rule 80 which states: – 80.(1) A Tribunal may make a wasted costs order against a representative in favour of any party (“the receiving party”) where the party has incurred costs – a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay.(2) “Representative” means a party’s legal or other representative or any employee of such representative, but it does not include a representative who is not acting in pursuit of profit with regard to the proceedings. A person acting on a contingency or conditional fee arrangement is considered to be acting in pursuit of profit. 78.Finally the tribunal noted rule 84 which states: –[84]In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay. 79.From the voluminous case law the tribunal considered a number of fundamental principles could be gleaned. 80.Firstly costs are the exception rather than the rule and that costs do not necessarily follow the event – Gee –v- Shell (UK) Limited [2003] IRLR 82 at paragraph 22. 81.Secondly just because costs are the exception rather than the rule does not mean that the case itself has to be exceptional in order for a tribunal to make an order – Power –v- Panasonic (UK) Limited EAT 0431/04. 82.Thirdly costs are compensatory and not punitive – Lodwick –v- Southwark London Borough Council [2004] IRLR 544. 83.Fourthly the tribunal must assume Mr J. Neckles was at all times acting on instructions. The tribunal noted that the claimant did not at any stage suggest he was not acting on his instructions. The conduct of the claimant’s representative can provide the basis for award for costs as the claimant is fixed with the consequences of his choice of representative see Taiwo -v- Olaigbe [2013] ICR 770. 84.There was one preliminary matter referred to in the papers, although not argued by Mr Ibdekwe, which the tribunal should briefly deal with, which relates to the without prejudice documentation and whether the tribunal was permitted to have sight of the same. The tribunal preferred the argument of Ms Jones on this point that once a substantive hearing had concluded the tribunal was entitled to look at what took place by way of settlement discussions when examining the rule 76 threshold. If however the tribunal was wrong on that point it considered it could do so because the claimant’s representative was utilising the “without prejudice” label to affect an unambiguous impropriety. In reaching this conclusion the tribunal has reminded itself that the bar is high. The claimant’s representative was seeking to prevent allegations of serious misconduct, allegedly lying to two tribunals, from being examined and was utilising the claimant’s claim as a vehicle to place pressure upon the respondent. Put succinctly Mr J.Neckles was saying that the respondents would face the burden and cost of defending the claimant’s claim unless they desisted in their own allegations against him as to his alleged misconduct, which had nothing to do with the litigation. That threat was unambiguously improper. It is for those reasons the tribunal considered it could look at the correspondence. The tribunal should emphasise it makes no finding whatsoever as regards the truth or falsity of the respondents’ allegations against Mr J. Neckles. Discussion. Rule 76. 85.There are three elements to a costs award. Firstly has the threshold criteria under rule 76 been surmounted, secondly, if so, should the tribunal decide to exercise its discretion to make an award and thirdly, if so, what should be the magnitude of any award. 86.In rule 76, unreasonableness has its ordinary meaning and is not the same as vexatious, see Dyer –v- Secretary of State for Employment UKEAT/183/83. This therefore implies that the threshold for vicariousness is higher. For vexatious conduct it must be established that the paying party knew there were no reasonable prospects of success whereas knowledge is not required simply for a finding of unreasonable conduct. 87.The key question is whether the claimant or MrJ. Neckles behaved unreasonably and the tribunal reminded itself it is not for it to substitute its own view but it had to review the decision taken by the claimant or his representative. 88.Here it is appropriate to deal with the submissions made by both parties. 89.Mr Ibdekwe’s best point was the claimant had succeeded. The tribunal did not accept, however, that merely because a claimant had succeeded that in itself was a bar to an order for costs being made; an example can be found in the decision in Nicholson Highland Ware Limited –v- Nicholson [2010] IRLR 859. Mrs Justice Smith (as she then was) said in the EAT:- "The question to be addressed under [what is now Rule 76] is not whether or not the paying party succeeded in any part of his claim. Such success would not, of itself, mean that he had not acted unreasonably. A party could have acted unreasonably and an award of expenses be justified, even if there had been partial (or whole) success. It will all depend on the circumstances of the individual case". 90.The tribunal considered that there could be cases where it would be perfectly reasonable for a claimant to continue to pursue their claim even if there was little or no financial benefit. For example a care worker dismissed for gross misconduct may decide to pursue a tribunal claim even though they have been offered a basic and a full compensatory award. They may pursue the claim to obtain a declaration that they have been unfairly dismissed as such a judgement could be material to their professional registration and obtaining further work in the care sector. 91.This however was not such a case. The claimant did not attach any weight at all to obtaining a declaration, evidenced by the fact that he indicated in June 2020 that he was prepared to drop his claim provided the respondent did not pursue costs. 92.Allied to this point the submission of behalf of the claimant that the respondent only admitted liability at the substantive hearing loses considerable weight because, for the reasons already outlined, a declaration had no value to the claimant. 93.An order for costs would not deprive a party of a right to a fair hearing. Article 6 is concerned with access to justice and the claimant has had his right to a fair trial. The State is entitled to stipulate in what circumstances a costs order may be made and as the tribunal has already observed costs are very much the exception and not the rule. It is the claimant or the behaviour of Mr Neckles acting on his instructions which has triggered the application for costs. Just because a party may obtain only nominal compensation does not mean that costs will automatically be awarded against that party. There has been no infringement of the claimant’s rights under The Human Rights Act 1998. 94.The tribunal did not consider the case of Shah -v- Shah mentioned in the claimant’s skeleton argument, although not referred to, at all, in oral submissions, assisted the claimant. Shah was a civil case subject to a completely different cost regime under the CPR where costs usually follow the event. That is to be contrasted with the employment tribunal where no such rule exists. More significantly in Shah there was a part 36 offer and much turned on the specific wording of that rule and whether the rejection by the appellant in that case defeated the potentially draconian cost consequences that followed . The respondent had made a part 36 offer where it indicated it would offer £1 and the claimants proceeded and recovered nominal damages of £10 but an award of costs was still made against them. 95.The tribunal does not consider that anything turned upon the fact that prior to judgement there was no indication given by the tribunal that a nominal award would be made. It would be rare, and potentially dangerous, for a tribunal to express a view, even provisional, until all the evidence and submissions had been heard. In any event the claimant knew there was a risk of a nominal order given he and Mr Neckless were aware of the first instance decision in Jimale. Mr Neckless would also have been aware of the first instance decisions in Gnahoua -v- Abellio London Ltd 2303661/2025, and Batchelor -v- Abellio London Ltd 2301635/2015 where in each case a nominal award of £2 was made. In each case Mr Neckles must have known that it was likely that any damages would be nominal firstly because of the awards made in the above cases which while not binding on this tribunal indicated how tribunal’ had approached similar cases, and secondly because he had no direct evidence from the claimant of any loss. 96.The tribunal is satisfied that the claimant or his representative behaved unreasonably and vexatiously . 97.It reached this conclusion for the following reasons. 98.The claimant had indicated in correspondence that he would withdraw his claim if there was no application for costs. That was accepted by the respondent. However the claimant also wanted the separate referral to the Regional Employment Judge to be withdrawn. That had nothing whatsoever to do with the claimants claim against the respondent. It had no benefit to the claimant w, only to Mr J. Neckles. 99.The fact the claimant then decided to pursue matters having first decided that his claim was not worth pursuing was both unreasonable and vexatious . In effect the respondent was being put to the costs of continued proceedings when the claimant considered they had no value because the respondent would not withdraw their referral against Mr Neckles. 100.The conduct of the claimant was further unreasonable when on 01 December 2021 the respondent offered, even at that late stage to allow the claimant to withdraw with no claim for costs but specifically warned the claimant that if matters were pursued he was at risk of costs and in the tribunal’s judgement fairly set out why there was such a risk. It was unreasonable in the circumstances of the claimant then still proceed.. 101.The tribunal does not accept the submission of Ms Jones that the conduct in the claimant withdrawing his discrimination and blacklisting allegations at the preliminary hearing on 18 February 2021 showed that the claimant and Mr J. Neckless had acted unreasonably from the inception of proceedings. The mere withdrawal of weak claims at a relatively early stage, does not necessary amount to unreasonable conduct. Indeed there is a public interest in encouraging parties to withdraw weak claims well before trial given the saving in tribunal time and also costs. The tribunal also noted that at no stage when the claimant withdrew was any threat then made as regards costs. 102.Having determined that the threshold criteria were satisfied the tribunal then had to decide whether or not to exercise its discretion, which is a separate and discrete question. 103.There is no need to establish a precise causal relationship between the conduct and the costs claimed but a tribunal should have regard to the nature, gravity and effect of the unreasonable conduct and its effect on costs, see McPherson –v- BNP Parabis 2004 IRLR 558.The tribunal had to ask itself whether there was unreasonable conduct by the paying party in bringing, defending or conducting the case and if so, identify the conduct, what was unreasonable about it and what effect it had. 104.As the tribunal have already identified the unreasonable conduct was the correspondence of June, the failure to withdraw following the costs warning in December and proceeding to trial knowing that the respondent’s prediction that any damages would be nominal was bound to be correct given the claimant was not giving any evidence as to his losses. 105.Although the tribunal has found that the rejection of the offer in December was unreasonable it does not follow that the tribunal must automatically exercise its discretion make an award for costs. The tribunal is conscious that the principal in matrimonial law of Calderbank –v- Calderbank (i.e. without prejudice as to costs offers) does not directly apply in relation to costs in the tribunal, see Kopel –vSafeway Stores PLC 2003 IRLR753. 106.However, Kopel does not say that Calderbank letters are irrelevant. In Kopel, Mr Justice Mitting stated that the Employment Tribunal "must first conclude that the conduct of an appellant in rejecting the offer was unreasonable before the rejection becomes a relevant factor in exercising its discretion….". 107.The rejection of the offer was unreasonable because the claimant and Mr J. Neckles were only pursuing matters because of the contempt of court referral and without any genuine desire to obtain a declaration, and they knew that they would recover nothing or only a nominal sum as no evidence was placed before the tribunal as to proof of loss. 108.The effect of the claimant’s conduct or that of Mr Neckles was such that the respondents were put to expense, certainly from June onwards. 109.The effect therefore was that the respondent incurred additional costs and that was causally linked to the unreasonable behaviour set out above. 110.The tribunal therefore concluded that it would exercise its discretion to make an award of costs. 111.The tribunal then turned to the magnitude of those costs. The tribunal had evidence from the claimant as to his financial position and considered they were a relevant factor to be taken into consideration both at the discretion and at the disposal stage. 112.The tribunal considered that it could carry out a summary assessment given the sum claimed was well within the tribunal’s jurisdiction. In looking at the summary assessment the tribunal has had regard to the published hourly rates for solicitors in the respondent’s solicitor’s locality and the time claimed. 113.The respondent was seeking costs of £4500 plus vat for work undertaken in respect of the case from its inception. The respondent cannot recover vat as it is vat registered. 114.The tribunal considered that at the earliest the unreasonable behaviour commenced was in June 2020 and not prior to that date for the reasons already stated. 115.The tribunal considered all the work undertaken in respect of the substantial hearing of £1000 was reasonable having regard to the fact it included an element of preparation. Similarly counsel’s fee in respect of the costs hearing was also reasonable, again bearing in mind it include element of preparation. 116.The tribunal did not accept that there was a further £1000 worth of work properly recoverable against the claimant between the substantive hearing and the cost hearing. In any event the appropriate charging rate was not £300 but on £177 having regard to the location of the respondents’ solicitors office and the grade of fee earner. The tribunal allowed two hours making a total of £354. 117.Although the tribunal would have been prepared to make an order for some costs from June the respondent has simply claimed a global sum of five hours at £300 per hour from inception and the tribunal could not discern what was pre-and what was post June and in the circumstances considered that the ambiguity should be decided in favour of the claimant. 118.The tribunal therefore assessed costs at £2354 in total. 119.The tribunal then factored in the claimant’s ability to pay. Whilst the claimant is unemployed it accepted the submission of Ms Jones that, that does not mean there should only be a nominal order. The tribunal has already recorded why the claimant has reasonable prospects of obtaining other employment. 120.The claimant also has the possibility of compensation from the respondent if he succeeds in his two outstanding tribunal claims. 121.Pulling all these factors together the tribunal considered £2000 would be appropriate. That equates the value the claimant placed upon his car which he said he was not using. That could therefore be sold to realise a sum to discharge the respondents’ costs. Rule 80. 122.It was submitted that a wasted costs order should be against Mr Nicholls and/or the union. The tribunal did not accept that in this particular case an order could properly be pursued against the union. On the claimant’s claim form the representative was given as Mr F. Neckles and while the union’s address appears, that was an address for service on Mr Neckles. The tribunal is satisfied that this was not a claim that was brought by the union but a claim brought by the claimant with his representative being Mr Neckles. 123.They may be cases where an order can be made against a union, for example where it brings a collective redundancy claim but this was not one of them. 124.It is a precondition to a successful application under rule 80 that the representative is acting for profit. 125.The key issue for the tribunal was determined whether Mr J. Neckles was acting in for profit. 126.The tribunal noted that case law pointed against trade union officials acting for profit. 127.Whilst another employment tribunal in Henry -v- London General Transport Service Ltd ET2301782/2015 had apparently investigated whether Mr Neckles acted for profit and had found in his favour this tribunal cannot attach great weight to that judgement, firstly because it is only persuasive and not binding but more significantly because a full transcript was not before the tribunal so it could understand the reasoning. However the tribunal cannot completely overlook that another tribunal has found that in the past Mr Neckles was not acting for profit 128.Significantly in this case the tribunal had the evidence of the claimant who was emphatic that he paid no sums to either the union or Mr Neckles or entered into any contingency or conditional fee agreement and the tribunal found the claimant to be a broadly reliable witness. 129.Ms Jones invited the tribunal to infer that Mr Neckles would not have acted for the claimant had it not been for profit. The tribunal rejected that submission. Firstly as the claimant was a member of the trade union one of the benefits a union member would normally expect would be free representation. Mr J. Neckles actions were consistent with him acting on behalf of his member as a trade union official. Further the tribunal considered that given the very lengthy litigation history between Mr J.Neckles and the respondent, and the level of animosity that existed Mr J.Neckles would have litigated in any event because of his dislike for the respondent, without the need for any form of monetary recompense. 130.The Tribunal did not accept Ms Jones’s submission that the decision of the EAT in PTSC Union -v- JB Global Ltd (in administration) UKAEAT/0212/2020 established the point she contended namely the burden of proof was upon Mr Neckles and/or the union to show he or they was not acting for profit. In the tribunal’s judgement the EAT was not looking at whether there was a burden of proof on a person/union to show they were not acting for profit. The case concerned solely the issue of vat on costs. At paragraph 41 HHJ Auerbach noted that the union had not challenged the finding at first instance that there burden of proof was upon them to show they were not acting for profit and declined to deal with the point stating “this is not being challenged on appeal, and therefore I do not in any event need to decide whether that is the correct approach to the burden of proof on this issue” 131.At its highest all Ms Jones can point to is that in PTSC is at the first instance an Employment Judge considered there was a burden on the union to show it had not acted for profit, because if not, it will be difficult for the other party to show that it was. 132.The tribunal did not have a copy of the first instance decision and therefore is unaware of the full reasoning utilised by the learned Employment Judge. This tribunal concluded that with respect to the learned Employment Judge a respondent could obtain evidence, for example by means of an application for specific disclosure. The tribunal therefore declined to follow the first instance decision for the above reasons. 133.In any event, in this particular case, if the tribunal was wrong on the above points, it was distinguishable because the tribunal had the credible, direct evidence of the claimant. 134.The tribunal concluded that the evidence before the tribunal pointed away from, in this particular case, Mr Neckles, acting for profit. This however is a finding on these particular facts. Another tribunal, on different facts may very reasonably reach a different conclusion 135.It follows therefore that the wasted costs order must be dismissed as the tribunal does not have jurisdiction. 136.The tribunal has not lost sight of the fact that the rule 76 unreasonable/vexatious behaviour may have been by Mr J. Neckles but the wording of section 76 is such that liability is still fixed on the claimant because the rule encompasses the acts or omissions of a representative. The tribunal noted at no stage did the claimant in evidence blame Mr Neckles or suggest he was acting contrary to his instructions. 04 May 2022