Employment Judge WrightNot represented for claimantMs J Laxton - counsel for respondentDate 26 November 2025
JUDGMENT
[1]The claims in relation to holiday pay for the period 2021-2022 having been withdrawn by the Claimant, they are dismissed pursuant to Rule 52 of the Employment Tribunals Rules of Procedure 2013 (as amended). Judge M Aspinall on Wednesday, 22nd March 2023 Case Number 2301926/2022 1 EMPLOYMENT TRIBUNALS Claimant: Mr N Wignarajah Respondent: John Lewis Plc Heard at: Croydon (CVP) On: 26 November 2025 Before: Employment Judge Wright REPRESENTATION: Claimant: Did not attend and no written representations Respondent: Ms J Laxton - counsel[1]There is a final hearing listed in this case for four days, due to start on the 8 December 2025.[2]There is a history to this claim. The claim was presented on the 4 June 2022. There were case management hearings on the 22 March 2023 and 26 July 2023. A four day final hearing was listed on the 22 March 2023 to commence on the 25 June 2024. There was therefore over a year’s notice of that final hearing. Case management Orders were made to progress the claim to the final hearing.[3]On the 10 May 2024 the claimant applied for a postponement of that final hearing. His reason was that he had surgery scheduled for the 10 June 2024. The respondent opposed that application and the claimant renewed it when the date of surgery was changed to the 20 June 2024.[4]The postponement request was granted on the 13 June 2024.[5]A notice of hearing dated 5 August 2024 relisted the final hearing for the 8 December 2025. Case Number 2301926/2022 2[6]Matters had not progressed satisfactorily. On the 16 October 2025 the respondent applied for a strike out of the claim, on the basis of unreasonable conduct and that it was not actively being pursued.[7]In the meantime, the claimant had presented a second claim (2304217/2025). In the main, that claim related to his resignation with the dismissal taking effect on the 17 April 2025 and a claim of victimisation.[8]When the respondent applied to strike out the claim the claimant’s focus was upon consolidating the two claims. It is fair to say, the claimant engaged with matters which were of concern to him, but not on substantive matters, which needed addressing in order to ensure the case was ready for the final hearing in December 2025.[9]This caused the Tribunal (Employment Judge Hart) to write to the parties on the 21 November 2025. The first matter addressed was that the two claims would not be consolidated as this would jeopardise the December 2025 hearing. It was considered the second claim post-dated the first claim and that almost three years separated them.[10]The Tribunal’s letter went on: ‘I note that the claimant has refused to agree a final hearing bundle. Further the parties have been seeking to agree a final bundle since 8 November 2024. It is simply not acceptable to attempt to have a hearing using two different bundles. The parties MUST agree a single bundle. That is to contain all the documents that the claimant wants and all the documents that the respondent wants, in chronological order, indexed and paginated. The inclusion of a document in the bundle does not mean that the other party agrees with it. For ease of reference the medical information can be in a separate section (or if significant in a separate bundle). I have listed this matter for an urgent public preliminary hearing on 26 November 2025 at 2pm by CVP to confirm with the parties that they are / will be ready for the hearing and make orders to ensure that they are ready and resolve any outstanding matters in relation to agreeing the hearing bundle and exchange of witness statements. If necessary and appropriate, the Judge at that hearing may consider the respondent’s application dated 16 October 2025 to strike out the claim on the grounds of unreasonable conduct. It is suggested that the claimant helps himself by agreeing the bundle with the respondent in advance of this hearing.’[11]The claimant wrote on the 22 November 2025 and informed the Tribunal he had a hospital appointment at 2pm on the 26 November 2025.[12]On the 25 November 2025 the Tribunal re-timed the hearing to 10am to accommodate the claimant. At 14:54 the claimant wrote to the Tribunal and stated that notwithstanding the adjustment, he was unable to attend the hearing, due to his ongoing medical condition and that he was currently unfit for work. He provided a Med 3 statement of fitness for work, which stated he Case Number 2301926/2022 3 was unfit for work (not unfit to attend a Tribunal hearing) due to obstructive sleep apnoea syndrome. He provided confirmation of his appointment at 2pm on the 26 November 2025. A second letter dated 30 July 2025 referred to a sleep study on the 17 July 2025; which stated ‘No action for GP’. It referred to the claimant starting treatment for obstructive sleep apnoea of CPAP.[13]The claimant also applied to postpone the final hearing listed for December 2025. His reason was stated: 'In light of my medical condition, and the resulting inability to attend the preliminary hearing on 26 November 2025, I respectfully apply for the final hearing listed for 8–11 December 2025 to be postponed to a later date. I ask that the Tribunal considers this request alongside the medical evidence provided, so that I am afforded a fair and reasonable opportunity to participate when I am medically able to do so.’[14]The only medical evidence was confirmation of an outpatient appointment with the Respiratory Physiology on the 25 November 2025. The outcome of the sleep study dated 30 July 2025 (no action for the GP). Along with the Med 3 statement.[15]It would appear the claimant intended to attend the outpatient appointment on the afternoon of the 26 November 2025 and hence, the Med 3 certificate was not preventing him from doing so. If he was well enough to attend that appointment, it follows he would have been well enough to attend a short video Tribunal hearing.[16]The application to postpone the final hearing was refused. The only document which was relevant to that application was the Med 3 certificate. The claimant had had that document since the 6 November 2025 and if he relied upon that document for the postponement, then his application had not been made at the earliest opportunity. It seems that it was only the listing of this urgent preliminary hearing, which prompted him to apply to postpone it and the final hearing. There was no substantive evidence as to why the final hearing should be postponed. All of the surrounding facts, including the previous postponement were taken into account.[17]The claimant had stated: ‘For the avoidance of doubt, I wish to confirm that I am not refusing to attend the hearings. I remain committed to pursuing my claim and am seeking only a reasonable opportunity to participate when my health permits’. Yet he was not pursuing his claim and he was not making efforts to progress the claim and to attend hearings. Reliance upon a Med 3 certificate is not a good enough reason to postpone a final hearing.[18]The respondent confirmed that despite the Tribunal’s letter of the 21 November 2025, the bundle was not agreed and therefore, witness statements had not been exchanged. Case Number 2301926/2022 4[19]The respondent applied to dismiss the claim under Rule 47. In the alternative, to strike it out under Rule 38. The respondent’s position was that the claimant was acting unreasonably in not agreed a bundle for over a year, which jeopardised the final hearing. Although it was acknowledged that the claimant had not disengaged from the proceedings, it was submitted that he had not actively pursued his claim. He had advanced matters of his own interest, but he had not engaged in actively pursuing the claim to the listed final hearing.[20]The respondent also acknowledged that if the final hearing was postponed, it was not likely to be relisted before 2028. This is a 2022 claim.[21]Non-attendance – Rule 47 If a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it must consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.[22]Striking out – Rule 38(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).(2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.(3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested).(4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim). Case Number 2301926/2022 5[23]On the issue of striking out the claim, the Tribunal also had regard to the authorities summarised in Smith v Tesco Stores Limited [2023] EAT 11, which referred to the overriding objective setting out:[33]… A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.[34]It is important to remember that parties are not merely requested to assist the employment tribunal in furthering the overriding objective, they are required to do so. [emphasis in the original] …[36]The EAT and Court of Appeal have repeatedly emphasised the great care that should be taken before striking out a claim and that strike out of the whole claim is inappropriate if there is some proportionate sanction that may, for example, limit the claim or strike out only those claims that are misconceived or cannot be tried fairly.[37]Anxious consideration is required before an entire claim is struck out on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant has been scandalous, unreasonable or vexatious and/or that it is no longer possible to have a fair hearing.[38]In Bolch Burton J considered the approach to be adopted in considering whether it is appropriate to strike out a claim because of scandalous, unreasonable or vexatious behaviour and concluded that the employment tribunal should ask itself: first, whether there has been scandalous, unreasonable or vexatious conduct of the proceedings; if so, second (save in very limited circumstances where there has been wilful, deliberate or contumelious disobedience of an order of the employment tribunal), whether a fair trial is no longer possible; if so, third, whether strike out would be a proportionate response to the conduct in question.[39]This approach was adopted by the Court of Appeal in Blockbuster Entertainment Ltd v James, [2006] EWCA Civ 684, [2006] IRLR630, where Sedley LJ stated: This power, as the employment tribunal reminded itself, is a draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal Case Number 2301926/2022 6 conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response.[40]In considering proportionality the Court of Appeal noted: 18. The first object of any system of justice is to get triable cases tried. There can be no doubt that among the allegations made by Mr James are things which, if true, merit concern and adjudication. There can be no doubt, either, that Mr James has been difficult, querulous and uncooperative in many respects. Some of this may be attributable to the heavy artillery that has been deployed against him, though I hope that for the future he will be able to show the moderation and respect for others which he displayed in his oral submissions to this court. But the courts and tribunals of this country are open to the difficult as well as to the compliant, so long as they do not conduct their case unreasonably.[41]In Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167 it was held: 55. Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court[42]Choudhury J (President) made a very important point about what constitutes a fair trial in Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327: 19 I do not accept Mr Kohanzad’s proposition that the power can only be triggered where a fair trial is rendered impossible in an absolute sense. That approach would not take account of all the factors that are relevant to a fair trial which the Court of Appeal in Arrow Nominees [2000] 2 BCLC 167 set out. These include, as I have already mentioned, the undue expenditure of time and money; the demands of other litigants; and the finite resources of the court. These are factors which are consistent with taking into account the overriding objective. If Mr Kohanzad’s proposition were correct, then these considerations would all be subordinated to the feasibility of conducting a trial whilst the memories of witnesses remain sufficiently intact to deal with the issues. In my judgment, the question of fairness in this context is not confined to that issue alone, albeit that it is an important one to take into account. It would almost always be possible to have a trial of the issues if enough time and resources are thrown at it and if scant regard were paid to the consequences of delay and costs for the other parties. However, it would clearly be inconsistent with the notion of fairness generally, and the overriding objective, if the fairness question had to be considered without regard to such matters. Case Number 2301926/2022 724. As per the above, the Tribunal is required to consider Rule 3, the overriding objective, when applying the Rules and to deal with cases justly and fairly.25. The Tribunal did not see the claimant’s email stating he would not be attending until approximately 9:10am. The clerk was asked to contact the claimant and to establish if he was going to attend. The clerk tried to call him two or three times. There was no answer.26. This was a public preliminary hearing, listed at short notice in order to ensure the claim was ready to be heard on the 8 December 2025. The claimant was unavailable and as a result of that, the hearing was re-timed. Notwithstanding that, the claimant indicated he still would not attend the hearing. He cited medical reasons. While there is no doubting he is certified as unfit for work by his GP, that does not address his ability to attend this hearing or indeed, the final hearing. Furthermore, the GP only owes a duty to claimant as their patient. There is no wider duty owed to the Tribunal or the respondent.27. It is noted that the Med 3 is dated 6 November 2025, yet the claimant had not applied at that time for a postponement of the final hearing.28. There is no substantive and independent medical evidence to address the claimant’s fitness to attend hearings during November and December 2025. Furthermore, there does not appear to have been any progress since the June 2024 hearing was postponed. No steps appear to have been taken to ensure the claimant’s fitness for the final hearing.29. The Tribunal does not accept the claimant was unable to attend this hearing and to participate in what was listed as a two hour public preliminary hearing.30. The Tribunal was therefore persuaded to dismiss the claim under Rule 47 due to the claimant’s non-attendance. He was aware of the hearing and applied for a postponement. The hearing was retimed to accommodate him. The claimant then sent an email on the 25 November 2025 to state that he was not attending the hearing and to apply for the final hearing to be postponed. He did not apply to postpone this preliminary hearing. Even if it could be assumed that he was applying for a postponement by referring to the Med 3 and the hospital letters, he did not answer the call when the clerk attempted to contact him. He knew a hearing was due to start at 10am on the morning of the 26 November and that a postponement had not been granted.31. In the alternative, it is accepted that striking out a claim or a response is a draconian power.32. The has been unreasonable conduct of the proceedings by the claimant, in not agreeing a bundle, particularly after Employment Judge Hart’s instruction. Agreeing a bundle should not be contentious. Based upon the medical evidence the claimant relied upon, he had not promptly applied for the final hearing to be postponed. This preliminary hearing had been listed in an attempt to get the claim back on track and for the final hearing to be effective. Case Number 2301926/2022 8 There has been a wilful disregard of the Tribunal’s Orders, particularly in respect of the bundle. That resulted in the respondent’s strike out application of the 16 October 2025. That coupled with the claimant’s non-attendance at this hearing, resulted in a fair hearing no longer being possible. As to whether a strike out is a proportionate response, there has been no substantive progress since November 2024. The fault lies with the claimant. Based upon the claimant’s conduct thus far, the Tribunal has no confidence in him that he will co-operate in future. He had one last opportunity as per the letter of the 21 November 2025 and he did not take it.33. For those reasons and due to the claimant’s non-attendance at this hearing, a fair trial in the December 2025 trial window is no longer possible. There has been no progress on agreement in respect of a bundle for over a year. It is not a particularly onerous task to agree which of the documents listed or disclosed, should be included into the final bundle. The claimant takes issue with the respondent’s documents. That is no reason not to agree to a bundle. The documents should go into the bundle, with the caveat that they are the subject of a dispute, which can, if relevant, be addressed at the final hearing. This was the resolution Employment Judge Hart proposed to break the impasse.34. The protracted proceedings are onerous for the respondent and it has incurred costs in attempting to finalise and agree the bundle, making applications as a result of the claimant’s failure to co-operate and then in attending this hearing.35. Due to the claimant’s conduct to date, there is no reason to suppose that he would in the very short term (no more than a week) reach agreement in respect of the bundle. He was however, unavailable at this hearing to explain what his objection is to the respondent’s suggestions.36. As a bundle has not been agreed, witness statements cannot be finalised and exchanged. The end result of that is that a fair hearing is no longer possible in the December 2025 trial listing.37. In the additional alternative, the claimant has not actively pursued his claim. He has not engaged in reasonable suggestions from the respondent, with the result that the respondent applied for the claim to be struck out on the 16 October 2025. As referred to above, the claimant has engaged in his case. He presented a second claim on the 17 April 2025. He has made consolidation applications in respect of the two claims. He has applied for a postponement of this hearing and of the final hearing. What he has not done and where the failure lies, is to progress and actively pursue this claim. What urgently needed to be done, was to agree a bundle and to focus on the preparation for the final hearing. Case Number 2301926/2022 938. It does appear that the claimant was not committed to the December 2025 final hearing going ahead and has done what he could to jeopardise and prevent that hearing. His tactics have not worked and the claim is struck out on the alternative basis that it has not been actively pursued.39. The respondent applied for its costs in respect of the preparation and attendance at this hearing. The application is under Rule 74(2)(a) – that the claimant’s conduct of these proceedings was unreasonable. The respondent seeks the sum of £250.40. As the claimant did not attend the hearing, it was not possible to have regard to his ability to pay any costs which are ordered to be paid. The respondent understands the claimant is unemployed. A separate Direction will be sent in this regard. Approved by: Employment Judge Wright 26 November 2025 Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found at www.judiciary.uk/guidance-and-resources/employment-rules-and-legislationpractice- directions/ Case Number: 2301926/2022 Page 1 of 7 EMPLOYMENT TRIBUNALS Claimant: Mr N Wignarajah Respondent John Lewis Plc
REASONS
[1]The background to the respondent’s costs application is set out in the Judgment following the Preliminary Hearing on the 26 November 2025.[2]The respondent applied for its costs in the sum of £250 on the basis that the claimant’s conduct was unreasonable.[3]The claimant had applied for a postponement of that hearing. As a result, the start time was changed. The claimant was informed of that. He knew the hearing had not been postponed, that the start time had changed and yet he did not attend. He did not provide written representations.[4]That led to his claim being dismissed under Rule 47 and it in the alternative, it was struck out under Rule 38.
The Law
[5]The Employment Tribunal Rules of Procedure 2024 provide: Case Number: 2301926/2022 Page 2 of 7 72. Definitions In this Part— “paying party” means a party liable to pay costs; “preparation time” means time spent by the receiving party (including by any of the receiving party’s employees or advisers) in working on the case, except for time spent at any final hearing; “receiving party” means a party entitled to be paid costs. 73. Costs orders and preparation time orders(1) A costs order is an order that the paying party make a payment to— (a) the receiving party in respect of the costs that the receiving party has incurred while represented by a legal representative or a lay representative, or (b) another party or witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing.(2) A preparation time order is an order that the paying party make a payment to the receiving party in respect of the receiving party’s preparation time while not represented by a legal representative.(3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings.(4) The Tribunal may decide in the course of the proceedings that a party is entitled to either a costs order or a preparation time order but may defer its decision on the kind of order to make until a later stage in the proceedings. 74. When a costs order or a preparation time order may or must be made (1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. Case Number: 2301926/2022 Page 3 of 7 (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned. (4) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal must order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a) the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing, and (b) the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment. 75. Procedure (1) A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. (2) The Tribunal must not make a costs order or a preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order). 76. The amount of a costs order (1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— i. in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles; ii. in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019, or by the Tribunal applying the same principles; (c) another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing; (d) an amount agreed between the paying party and the receiving party in respect of the receiving party’s costs. Case Number: 2301926/2022 Page 4 of 7 (2) Where the costs order includes an amount in respect of fees charged by a lay representative, for the purposes of the calculation of the order, the hourly rate applicable for the fees of the lay representative must not exceed the rate under rule 77(2) (the amount of a preparation time order). (3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000. 82. Ability to pay In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.[6]When determining an application for costs, the Tribunal should apply a threestage approach:a. Is the relevant jurisdictional threshold in rule 74 met?b. If so, should the Tribunal exercise its discretion in favour of making a costs order?c. If so, what sum of costs should the Tribunal order?[7]For the purposes of rule 74(2)(a) the word ‘unreasonable’ is to be given its ordinary English meaning and is not to be interpreted as meaning something similar to vexatious (Dyer v Secretary of State for Employment UKEAT/0183/83).[8]The Tribunal should consider the nature, gravity and effect of the unreasonable etc conduct, but it is appropriate to avoid a formulaic approach and have regard to the totality of the relevant conduct. As Mummery LJ explained in Yerrakalva v Barnsley MBC [2012] ICR 420, CA at §41: The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had […][9]It should, however, be noted that the Tribunal is not confined to making an award limited to those costs caused by the unreasonable conduct (McPherson v BNP Paribas (London Branch) [2004] ICR 1398, CA).[10]Whilst the Tribunal is not limited to awarding those costs incurred by the receiving party as a result of the paying party’s unreasonable conduct, the ‘effect’ of the unreasonable conduct will often be a relevant factor in the Tribunal’s exercise of its discretion (Yerrakalva v Barnsley MBC [2012] ICR 420, CA). Case Number: 2301926/2022 Page 5 of 7[11]In circumstances where the Tribunal finds that the jurisdictional threshold in rule 74 is met, the Tribunal retains a broad discretion as to whether to make a costs order and the amount of any costs awarded. Whilst there is no closed list of factors relevant to the exercise of the Tribunal’s discretion, the following factors are often relevant:a. Costs orders are intended to be compensatory, not punitive (Lodwick v Southwark LBC [2004] ICR 884, CA). Therefore, the extent of any causal link between the unreasonable etc conduct and the costs incurred will normally be a relevant discretionary factor (Yerrakalva), albeit there is no requirement to establish a causal link between the unreasonable conduct and the costs incurred before an order can be made (McPherson).b. The paying party’s ability to pay is a factor which the Tribunal is entitled, but not obligated, to consider (see rule 82). Where regard is had to the paying party’s ability to pay, that factor should be balanced against the need to compensate the receiving party who has unreasonably been put to expense (Howman v Queen Elizabeth Hospital Kings Lynn UKEAT/0509/12).c. Any assessment or consideration of means need not be limited to the paying party’s means as at the date the order is made. It is sufficient that there is a ‘realistic prospect that [they] might at some point in the future be able to afford to pay’ (Vaughan v London Borough of Lewisham [2013] IRLR 713, EAT).d. Where the Tribunal does decide to take the paying party’s means into account, it must do so on the basis of sufficient evidence (for example by the paying party completing a county court form EX140) (Oni v NHS Leicester City UKEAT/0144/12).e. There is no requirement to limit costs to the amount the paying party can afford (Arrowsmith v Nottingham Trent University [2012] ICR 159, EAT).f. The Tribunal may have regard to the means of a party’s spouse or other immediate family members (Abaya v Leeds Teaching Hospitals NHS Trust UKEAT/0258/16).g. Whether a party is legally represented may be a relevant factor. An unrepresented litigant may be afforded more latitude than a party who has the benefit of professional legal advice and representation (AQ Ltd v Holden [2012] IRLR 648, EAT).[12]Is the costs jurisdiction threshold met? Yes it is. It is unreasonable conduct not to attend a hearing. Particularly a preliminary hearing such as this one, Case Number: 2301926/2022 Page 6 of 7 listed when the final hearing was due to start in seven working days and the claimant had refused to agree a bundle for that final hearing. There had been other disruptive conduct by the claimant during the run up to the final hearing. Not agreeing a bundle is unreasonable, as is not attending a hearing which the claimant was aware of. He deliberately chose not to attend.[13]The next question is whether the Tribunal should exercise its discretion in making a costs Order. The costs the respondent sought were modest - £250. Other far more significant costs must have been incurred by the respondent for what proved to be a futile exercise.[14]This is a claim presented on the 4 June 2022. The final hearing had been postponed previously upon the claimant’s application. This preliminary hearing was a last ditch attempt to ensure the final hearing was effective. This hearing would not have been necessary if the claimant had complied with the overriding objective and had cooperated. All that was required of him was for him to attend the hearing in order that matters could be moved on. The Tribunal simply does not have capacity to keep postponing final hearings and for cases to linger on. The longer a case takes to reach a conclusion, the more costs are incurred. This is particularly an issue for the respondent. The claimant has not complied with the overriding objective.[15]In regard to the claimant’s ability to pay any costs, he has said: ‘I confirm that I am currently unemployed due to ongoing illness. I have reviewed County Court Form EX140, as referred to by the Tribunal. While I understand that I am not required to complete that form, I provide below information in line with the type of financial details it contains. Employment / Income I am not currently in employment due to illness and do not receive any earnings. My only income is Universal Credit, which is paid jointly with my wife. I do not receive any separate or individual income. I have no other sources of income. Dependants I have a dependent child aged 16, who is in full-time education. Housing I live in rented accommodation. Savings / Assets Case Number: 2301926/2022 Page 7 of 7 I confirm that I do not have any savings and do not hold any significant assets. Essential Monthly Outgoings The essential household expenses (including rent, utilities, food, and basic living costs) are met by my wife from her own income. I do not personally meet these expenses and do not have independent funds available to do so. Statement In light of my ongoing illness, lack of employment, absence of personal income or savings, reliance on joint benefits, and responsibility for a dependent child, I am not in a position to pay any costs order. I respectfully ask the Tribunal to take these circumstances into account when considering the respondent’s application.’[16]There was no medical evidence or other documentary evidence provided.[17]There was no response from the respondent to the claimant’s statement.[18]Notwithstanding the claimant has said he is impecunious, the Tribunal is prepared to exercise its discretion and to make a costs Order.[19]The final question is the sum which should be awarded? The claimant has referred to his wife’s income. The Tribunal may have regard to that. The Tribunal is therefore satisfied the claimant has access to some funds, although they may be limited to his wife’s income. It has also considered the need to compensate the respondent who has been put to expense as a result of the claimant’s unreasonable conduct..[20]Tribunal will allow the respondent’s application for a Costs Order and the claimant is Ordered to pay to the respondent the sum of £50. 15 January 2026 Approved by