Miss T Robinson v PMP Recruitment Ltd and Amazon UK Services Ltd: 2302079/2017 Miss T Robinson v PMP Recruitment Ltd and Amazon UK Services Ltd: 2302079/2017

EMPLOYMENT TRIBUNALS

Case No 2302079/2017

Between

Miss T RobinsonClaimant

PMP Recruitment Ltd and Amazon UK Services LtdRespondent

Before

Employment Judge Sage

Date 4 April 2019

JUDGMENT

It is the judgment of the Tribunal that the claim of unfair dismissal under the Employment Rights Act 1996 and any claim under the Health & Safety at Work Act etc 1974 are struck out. The remaining elements of the claim are not affected by this judgment.

REASONS

[1]The Claimant was notified in accordance with rule 37(2) of the Employment Tribunal Rules of Procedure 2013 on 16 November 2017 of the proposal to make this judgment.

[2]The Claimant has not provided any representations as to why this judgment should not be made by the Tribunal nor has a request been made that there be a hearing to consider the proposed judgment.

[3]In the judgment of the Tribunal the claims do not have any reasonable prospect of success.

[1]By a claim form presented to the Tribunal on 8 August 2017 the Claimant made claims of unfair dismissal, sex discrimination and breach of contract against the Respondent (referred to as Amazon in this judgment) and PMP Recruitment. By the time of this hearing the claims against PMP Recruitment had been dismissed and the only claim was of sex discrimination (direct discrimination and harassment) against the Respondent. The Respondent defended the claims in its response.

The issues

[2]The issues for the Tribunal to determine were agreed between the parties as being those issues set out by the Claimant in tabular form titled “Table showing Sex Discrimination by Dean Downs – Supervisor and others”. This sets out the date of the incident, the details of the incident, the persons involved and who the comparator was. There were 21 Separate incidents relied on. This document makes reference to victimisation however this was not a claim before the Tribunal.

The hearing

[3]The Tribunal heard evidence from the Claimant. For the Respondent, the Tribunal heard evidence from Mr Dean Downs (Supervisor), Mr Ryan Howard (Operations Manager at the relevant times) and Mr J Caldicott (Human Resources). There was an agreed bundle of documents numbered to 153.

[4]The Claimant did not provide a written witness statement despite the order of EJ Sage dated 15 August 2018 (which the Claimant attended in person) making an order that witness statement should be exchanged no later than 4 March 2019. The Respondent had served witness statements for Mr Downs and Mr Howard in advance of the hearing on the Claimant. The Claimant said she did not receive the order until the Friday before the hearing (29 March 2019). In order to progress the case, the Tribunal asked the Claimant if she wanted the documents attached to her claim form to stand as her evidence in chief taken together with the issues in the table referred to above. The Claimant agreed to progress in this way. The Tribunal noted that these documents go further than the issues in the table and advised the parties that only those matters in the table would be considered as the issues to be determined.

[5]In the bundle was a schedule of loss prepared by the Claimant. The Claimant said that this was prepared before she fully understood how injury to feelings are calculated and wanted to amend it. The Tribunal was to adjourn to read the witness statements and it was suggested that the Claimant could prepare a revised statement in this adjournment. There was a dispute about when the Claimant started new employment with the Respondent saying it was in May 2018 and the Claimant saying it was months later perhaps September or October. She was unable to give a precise date. The Tribunal noted that the Claimant had been ordered to disclose all documents relating to remedy by EJ Sage in her order of August 2018 and that the Claimant had not complied. The Claimant was asked by the Tribunal to bring the contract and payslips relating to her new employment on day 2 and to let the Respondent see it before the hearing commenced. The Claimant agreed to do this.

[6]Before the hearing started on day 2, the Claimant provided the Tribunal with a small bundle of documents one of which was her amended schedule of loss. The Tribunal noted that these documents contained without prejudice communications which it should not see, so returned the papers to the Claimant. The Claimant was invited to remove the numerical schedule of loss and hand this in, but she refused. The Respondent said it had a conversation with the Claimant on day 1 explaining that she should not produce without prejudice correspondence during the hearing.

[7]The Tribunal asked for the Claimant’s contract of employment and payslips relating to her new employment as these were not included in the documents she provided. The Claimant’s response was that she was not going to provide these documents having been advised that she did not need to. It was explained by the Tribunal that she had been ordered to provide them, but she still refused to do so. The Tribunal further explained that if she was successful the she would not be able to prove loss of earnings without those documents. The Claimant said she understood this, but she still was not going to provide them. The Claimant was given the opportunity to reconsider her position at the end of day 2 and bring in the documents on day 3. On day three she said that her position had not changed, and she refused to disclose the documents.

[8]As the Claimant was representing herself the Tribunal did what it could to assist her in accordance with the overriding objective. It gave her extra time on day one to prepare before giving her evidence (she asked for an extra hour which was given). The Tribunal also gave assistance in phrasing her questions so the Respondent witnesses could understand what they were being asked to answer. The Claimant thanked the Tribunal for its assistance.

[9]During the Claimant’s evidence it became clear that there were three matters which were in significant dispute which had not been anticipated prior to her evidence at the hearing. The Respondent suggested that Mr Caldicott who was observing the hearing could give evidence on the disputed matters. The disputes were: the origin of video footage which the Respondent produced as CCTV footage, but the Claimant maintained was a covert recording; the veracity of statistical evidence in the bundle and the contractual relationship between PMP Recruitment and Amazon. The Tribunal considered this during a break and decided that even though Mr Caldicott had not produced a witness statement (as the areas of dispute were not anticipated previously) it would be helpful to have his evidence which may assist the Tribunal in coming to its conclusions. The Tribunal asked the Claimant if she had objections and as she did not, the Tribunal heard from Mr Caldicott.

[10]The Respondent had footage of an incident the Claimant relies on in her evidence concerning her leaving the Amazon warehouse and security checks done. The Respondent’s position is that it was CCTV footage was part of its security on site. The Claimant said it was done from a hand held camera and was not CCTV footage as it did not have the time and date stamp which is usual on CCTV footage. The Claimant had been asked to view the CCTV footage while the Tribunal was reading its statements on day 1 but did not do so as the Respondent was unable to find the Claimant as she had sat in a different part of the building not telling the Respondent where she was. The Claimant was asked if she wanted to see the footage at the same time as the Tribunal did but did not want to do so.

[11]The Tribunal decided to view the footage again once the Claimant raised her issues with its veracity. The footage is described in more detail below, but it was evident that this was a recording taken on a hand held device (the Respondent said it was a mobile phone) of a computer monitor that was playing the footage. The server where the footage is held is in Seattle and is wiped after a certain time. The Respondent wanted to capture the image before it was deleted and so recorded it on a mobile phone. The Tribunal could clearly see the computer monitor.

[12]The Tribunal also noted that on the bottom left hand side there was the date and time. The Claimant was invited to view this and accepted that this was a genuine CCTV recording. She did not dispute it was her in the recording or that the recording was of the incident she relied on. Mr Caldicott was able to satisfactorily explain how the recording was made.

[13]The Claimant was an employee of PMP Recruitment and was assigned to work at Amazon. PMP have staff who are on site to deal with their employees. As is common in this type of arrangement, all complaints, grievance, disciplinary and other personnel matters for PMP staff are dealt with by them. PMP would investigate issues and if needed to would escalate matters to Amazon if there was an issue that Amazon had to deal with in relation to its staff. Mr Caldicott confirmed this, and the Tribunal accepts this is how these matters worked. If a PMP employee raised a complaint with Amazon, Amazon would pass this to PMP to deal with and do not directly become involved.

[14]The Claimant’s employment with PMP ended on 22 May 2018. The Respondent was not part of the decision to terminate the Claimant’s employment with PMP. The Claimant was employed as an Associate and worked alongside Amazon employed Associates. She worked four days a week starting at 5 am in the ‘Fresh’ department. This dealt with fresh foods. The Claimant, along with the other Associates, was expected to undertake a wide range of duties which were assigned by the supervisor. There were two supervisors on the days the Claimant worked, Nora (who has since left and was not available to give evidence) for two of the Claimant’s shifts and Mr Downs for the other two. They do not meet except for Wednesdays at a regular management meeting. The Claimant’s main complaints are against Mr Downs. It was explained by Mr Downs and Mr Howard that what was assigned to the Associates was dependent on business needs at that time which could change from minute to minute depending on what orders were received.

[15]The work in the ‘Fresh’ department was largely group work with several Associates working together to get orders ready, whereas other work in the warehouse was more insular with one person doing a particular thing. The gender split was about 60/40 male to female. This evidence was given by Mr Downs and although disputed by the Claimant was accepted by the Tribunal.

[16]The warehouse is a busy and noisy environment. Music is played which is appreciated by all staff and put on by the supervisors. In the ‘Fresh’ department there is a different system as it has laptops used for orders which are connected by Bluetooth to speakers. If working using the laptops, staff can access the Internet and play music of their choice (eg from YouTube) in that area of work. This area does not have access to the music system elsewhere in the warehouse. The music forms part of the issues for the Tribunal to determine and is dealt with in more detail below.

[17]The Tribunal must determine whether the Claimant was treated less favourably than a comparator because of her gender for the s13 Equality Act 2010 claim. The Claimant must show facts from which the Tribunal could conclude that there was discrimination and if she does then the Tribunal would look to the Respondent for an explanation that was not discriminatory. It is not enough for there to be treatment the Claimant considers bad or unfair and she is female, she must show a connection between the two.

[18]The Tribunal started considering how the Claimant has put her case. The documents the Claimant has chosen to use as her witness statement comprise what she says were complaints made to Ms H Sanders, HR for Amazon during her employment. The Tribunal has read these carefully noting what was in the Claimant’s table of issues to be determined. The Tribunal focussed on what the Claimant said in these complaints about the incidents and how she puts them in terms of them being acts of direct sex discrimination and harassment on the ground of sex. These documents (which the Tribunal notes Amazon says it did not receive) are detailed and set out lengthy narrative of various incidents. They record several matters the Claimant is not happy with; however it does not relate these matters to unfavourable treatment on the grounds of sex either explicitly or implicitly. The Tribunal was not just looking for direct reference (eg I believe I was treated this way because I am a woman) but also for other information which would lead Amazon or anyone reading it to believe this is what she was saying.

[19]The Claimant talks about problems in her relationship and communication with her colleagues (both male and female) and recites several incidents. The closest that the Claimant gets to mentioning sex discrimination is when she is discussing the music played in the ‘Fresh’ department. Here she describes the music as talking about female body parts and being offensive. However, the thrust of her complaint is about cultural appropriation. She says she does not find the music appropriate in a workplace (a sentiment the Tribunal agrees with) but does not say she is offended as a woman. Most of the complaint about music is in relation to the music referring to drugs and a colleague making fun of a Jamaican way of dancing.

[20]Having read this the Tribunal considered that the Claimant was clearly not happy about several aspects of her employment but that these complaints do not say she feels the reason for what was happening was discriminatory based on her gender at the time they were written.

[21]The Claimant provided a narrative to her schedule of loss to explain her claim for injury to feelings. In this narrative she says “During my time at Amazon I was deliberately and continuously bullied, picked on humiliated and embarrassed by Dean Downs, for no other reason that that I could do my job better than he could. Not content to do this harassment on his own, he encouraged others, such as Bob and Frederick to participate in his harassment”. (Tribunal emphasis).

[22]It is against this background that the Tribunal went on to consider the evidence given in the Tribunal. In doing this the Tribunal considered each of the 21 issues as set out in the Claimant’s table. The exact wording from the table is set out with the Tribunals findings of fact and conclusion following. Nov 2016 Dean started Dean Downs I started the job working and (Supervisor) with a man named clearly had a Daniel, we were problem with the trained to do fact that I as a exactly the same woman could do job, yet Dean the job better than NEVER treated he could. On his him this way. 1st day he had an argument with the driver so I had to take over, as I had been there the longest and knew what to do.

[23]This issue does refer to the Claimant’s gender however the Tribunal notes that this was not what was in her ET1 as this table was produced later as additional information.

[24]Mr Downs denies that he had an argument with a driver. The Claimant reiterated what is in this issue in her evidence. There was no other supporting evidence to substantiate this allegation. This does not show unfavourable treatment towards the Claimant. All she says is that she took over. If this was the case, on her evidence it was not because Mr Downs instructed her to do this and in any event, she did not say that having to take over was a problem; just that she was there and did this. This does not show discrimination. For clarity, the Tribunal prefer the evidence of Mr Downs and find on balance that this incident did not occur. Nov 16 Harassment Dean Downs He NEVER did begins – He this to Daniel or begins calling out anyone else. my name, shouting it in front of people I had to work with for no reason, just to humiliate me.

[25]There was no dispute about the warehouse being a noisy working environment which has aisles and shelves throughout. Music is played which the Tribunal could hear on the CCTV footage shown. That audio on the footage also revealed something about the noise levels with a trolley being moved in sight of the camera. The Claimant’s case is that Mr Downs would randomly shout her name out with the intention of humiliating her and she says this is harassment. Mr Downs denied shouting but did say he would call out her name if he wanted to speak to her and he could not find her. He said he did this to get the attention of other associates (both male and female) as needed. The Claimant has not provided any evidence to support this allegation despite her evidence that this was done in front of other staff. The Tribunal, having heard from Mr Downs and considering the warehouse layout and noise levels accepts his evidence. The Tribunal finds on balance that Mr Downs did not shout the Claimant’s name randomly. Nov 2016 When I was Dean Downs He NEVER did leaving Dean this to Daniel followed closely behind me and as I exited the building he shouted “AND DON’T COME BACK!!”

[26]The Tribunal has checked its notes of the evidence given and note that the Claimant did not cross examine Mr Downs on this point even when he denied it in his oral evidence. The Claimant has not provided any corroborating evidence and the Tribunal accepts Mr Downs’ denial and finds that this did not happen. [no date given] He started trying Dean Downs He NEVER did to undermine me this to Daniel. with my coworkers. Deliberately getting other people especially men to do the key jobs. Relegating me to the lesser jobs, like stacking boxes. He only wanted me to do the computer when no one else was there to do it.

[27]The Tribunal first considered the oral evidence given by the Claimant and Mr Downs. Mr Downs denied the allegation in its entirety both in regard to him harassing her or him encouraging others to do this. The Claimant accepted that stacking boxes and other roles she considered lesser were part of her job and within her job description.

[28]The Respondent provided statistical evidence. This evidence was challenged by the Claimant on the basis that the Respondent could have tampered with the figures to suit their defence. The Tribunal was provided with 7 pages of statistical evidence collated by Mr Caldicott. Mr Caldicott was called to give evidence of how he obtained the information. He told the Tribunal that he called up the records relating to the Claimant’s hand-held device and that the data related to this information only and not when (on the Claimant’s case) she did not have one at the start of her employment and used someone else’s. This device records what work an employee is undertaking and gives instructions to the employee about what they should be doing.

[29]Although the Tribunal accepts the data on the database is read only, the Tribunal considers that once the data is downloaded it is possible to change the figures in the Excel spreadsheet. However, even though this is possible, the Tribunal does not find that this happened and accepts Mr Caldicott’s evidence that he did not manipulate the figures. In summary these spreadsheets show that the Claimant was not given a disproportionate amount of what she considers lesser jobs than Daniel or any other Associate.

[30]Even if the Tribunal disregarded this statistical evidence, the Claimant has not provided any evidence to support her allegation. The Tribunal finds that the Claimant was allocated work she was employed to do, and which was within the ambit of her job description and she was allocated the work on the same basis as all other Associates. The Tribunal accepts the Respondent’s evidence that depending on training some Associates will not undertake certain work and as a result spend more time on other tasks.

[31]In her evidence the Claimant alleged that it was directly discriminatory that Daniel was not given removal work to do. This is taking the rubbish out. Mr Downs said Daniel was not trained to do this so was not given this work. He said he had a matrix showing what individual Associates could or could not do but this was not before the Tribunal. The Claimant accepted that she did not know what training others had done but commented that you do not heed to be trained to do removals. Overall and on the balance of probabilities, especially considering the statistical evidence the Tribunal does not find this allegation to be made out. The Claimant provided no evidence to support her arguments. Dec 2016 He began to Dean Downs He NEVER did encourage others (Supervisor), Nora this to Danie#l. to join in his Regenye mistreatment of (Manager) and me. I found that Boubacar Keita both Nora and aka Bob Dean were always (Manager) giving me the “Removals to do, wshich meant that evey shift I had to deal with the rubbish. I even heard him say to Bob and Nora that I liked doing it while they laughed.

[32]The Claimant worked four days per week. Mr Downs was the supervisor on two days, and Ms Regenye was the supervisor for the other two days. Ms Regenye has now left the Respondent’s employment and was not available to give evidence. Mr Downs denied this allegation in its entirety. The Claimant did not provide any supporting evidence and taking into account the statistical evidence the Respondent provided the Tribunal does not find this allegation to be proved as this evidence does not show the Claimant did more of this type of work than other employees. The Tribunal accepts Mr Down’s evidence that he did not have any interaction with Ms Regenye as they worked different shifts save for a Wednesday when they both attended management meetings and notes that removals is part of the Claimant’s job description. Dec Before Dean started working I never Dean Downs He NEVER 2016 had a problem with Bob. I always found and Bob did this to him to be friendly and easy going. Now Daniel Dean and Bob started harassing m together. They gave me a shopping trolley filled with rubbish, pushed it at me and told me to go empty it. This after I had just finished throwing away the expired stock. This they thought was very funny.

[33]The Claimant’s complaint about this changed during her evidence from being asked to deal with the rubbish to a complaint solely about the type of trolley they asked her to use. She accepted that part of her job was to deal with the rubbish. The Tribunal saw a trolley typically used in the warehouse on the CCTV footage. This was a trolley with shelves which was open at all sides. The trolley the Claimant complains about is a small shopping trolley like those at supermarkets. Mr Howard gave evidence that this trolley was obtained as part of an unsuccessful trial by another manager and that there was only one of these trolleys in the warehouse. After the trial ended the trolley was used by several Associates in the same way as their normal trolleys were used. His evidence was that it may have been in an area of the warehouse where the Claimant did not work so she may not have known about it.

[34]There was no evidence to support the Claimant’s argument that the trolley was not used by other staff. The Tribunal specifically asked the Claimant why she felt that the type of trolley she was asked to use was discriminatory and she seemed to suggest that it implied that as women use the trolleys in supermarkets it was given to her because she is female. The Tribunal does not find this to be what happened and accepts the Respondent’s argument that the trolley was to hand and was simply a vessel to take the rubbish out. Allegations 7 and 8 Dec Bob wanted me to empty a Bob He NEVER did 2016 large container filled with stock, this to Daniel on my own. In order to count it and the place everything back inside. I said No. He then got 2 people to do the job he wanted me to do on my own. Complaint No 1. Bob again wanted me to do a stock count of a large container on my own, and Dean was constantly shouting out my name for no reason, so I decided to make a Dean Downs, He NEVER did Dec complaint about the Bob, Anne- this to Daniel 2016 harassment to Anne-Marie. Marie (HR She said she would email Ryan Assistant and Howard and report the matter to Ryan Howard him. She also said that she (Site would have a word with Dean. Manager.

[35]The Tribunal has taken these two allegations together as they relate to a similar situation of working alone. Anne-Marie is in fact Annamarie who works for PMP Recruitment at the Amazon site to deal with PMP employees working there. Mr Howard gave evidence that he was told that the Claimant had made a complaint by Annamarie but not what the complaint was about. He was told that Annamarie would deal with it. The complaint referred to here is the document which the Claimant has used as her witness statement described above.

[36]From this allegation the Tribunal can see that the Claimant refused to do work that was allocated to her namely a blind count which she accepts is part of her job description. Her evidence was that she was asked to do this on her own and this did not happen to Daniel. Mr Howard gave evidence that this task was a normal job for an Associate to do and the number of people assigned would vary depending on how busy the department was at that particular time. If it was busy and staff were required in other areas, then one person would be assigned and if it was quiet then more people would be assigned. Clearly if only one person did the task it would take longer than if there more people undertaking it. Mr Howard’s evidence which was not challenged, is that he on occasion had done this alone for a whole shift. In her submission document the Claimant says that Mr Howard’s evidence was that in busy times more employees were deployed to do the count. The Tribunal has checked its notes of evidence and finds this not to be what Mr Howard said. He said in busy times, less employees are deployed.

[37]The Tribunal accepts Mr Howard’s evidence and does not find that the Claimant has shown any facts that show the allocation of work was unreasonable and discriminatory. Dec I came back downstairs, and she Dean [no comparator 2016 followed me. She went over and Downs given] upspoke to Dean, but it was obvious and that they both found it amusing Annebecause she had a big smile on her Marie face. She went back upstairs and Dean started shouting out my name even more loudly. I went back and complained to Anne-Marie. She told me that Ryan Howard, said he would have a meeting with me first thing Monday morning.

[38]The Tribunal has taken these two allegations together as they are similar in nature. The Claimant could not say what Mr Howard and Mr Downs were laughing about. She just saw them together. Mr Howard was asked about his personality with the Claimant saying he was a reserved person and not one to routinely crack jokes. Her case was that it was unusual to see him laughing and that is why she thought they were laughing at her. Mr Howard said is was midway between and extrovert and introvert and always sought to act in a professional manner at work. He denied joking about the Claimant or about any member of staff. In relation to allegation 9, the Tribunal does not find this to be made out. The Claimant has not provided any evidence that Mr Downs and Mr Howard were joking about her. She does not say for example, that she heard what they were saying, or that they were looking in her direction. She simply saw them together. [no date The next day when Ryan Howard [no detail He NEVER did given but came in he went and stood with given] this to Daniel day after Dean, laughing and joking. At allegation about 9am a meeting was called for 9] all the staff, where we were told by Bob that somebody had made a complaint about him and that he’s been told by management that he’s such a wonderful guy that clearly this complaint has no foundation in facts. Bob went on for about 15 minutes talking about how wonderful he is and that if anyone wants to make a complaint against him then they should go right ahead!!! Ryan Howard never said a word to me, regarding my complaint and he never has.

[39]The Tribunal accepts the Respondent’s evidence that as the Claimant was a PMP employee all personnel matters including complaints and grievances were dealt with by PMP and not by Amazon. Mr Howard gave evidence which was corroborated by Mr Caldicott, that he does not conduct investigations himself. His role was Operations Manager and it was the Area Manager who would be involved in investigations. The evidence which the Tribunal accepts is that it is only if PMP consider a complaint to be valid and that the complaint may need action to be taken against an Amazon employee that the matter is escalated to Amazon for it to deal with.

[40]The Tribunal accepts the Respondent’s submission that if the Claimant was dissatisfied with the investigation done by Annamarie for PMP, then this was a matter against them and not Amazon. From the evidence Annamarie did receive a compliant from the Claimant and she spoke to Mr Downs and Bob about it who gave their responses to her. [no date Dean continued to harass me. [no He NEVER did given] Constantly shouting out my name at details this to Daniel. random times around the given] warehouse, before I left he was going it in meetings, while we were all standing together he would just call out my name in a mocking tone, and I would have to stand there while everyone laughed.

[41]The Tribunal has already made its findings about Mr Downs shouting the Claimant’s name in the warehouse. Mr Downs similarly denies calling out the Claimant’s name in meetings. Despite there being witnesses to what the Claimant says happened, there was no supporting evidence from the Claimant to show first that this happened or to suggest it was done because of her gender. For example, there is nothing in writing from the Claimant to PMP suggesting this. 12 May Complaint No 2. After getting the Nora [no detail given] 2017 information from both Nora Regenye Regenye and Natalia Nuckowska, I and Natalia made a formal complaint to Helen Nuckowska Sanders. This is my complaint titled “Working at Amazon”

[42]The complaint referred to is part of the attachment to the claim form which the Claimant used as her witness statement. Ms Helen Sanders works in Amazon’s HR department. The Respondent does not accept the complaint was sent to Ms Sanders. In any event this is just a statement that a complaint was made and not an allegation of discrimination, so it has not been considered further. 12 May Given a warning – 32 Points for [no detail [no detail given] 2017 sickness absence given]

[43]There was no evidence of this and if a warning had been given it would have been given by PMP as the Claimant’s employer and not Amazon. This issue has not therefore been considered further. 16 May Received email saying this was a Helen [no detail given] 2017 matter for my employer PMP to deal Sanders with. She did nothing. (HRBP) Prime Now UK)

[44]The Tribunal has found that as the Claimant was employed by PMP it was PMP who was responsible for all personnel matters including grievances and complaints. Therefore, Amazon was acting in accordance with the contractual position between them and PMP. This was not unfavourable treatment, and not treatment on the grounds of the Claimant’s gender. It cannot constitute harassment on the ground of gender. [no date Because of the way Dean was He NEVER did given] treating me other people felt that this this to Daniel was acceptable. People like Frederick, Nedyelka, Andrew, Sam, Latifa and Samantha and others.

[45]The Tribunal has found that Mr Downs did not treat the Claimant in the way alleged and that he did not encourage others to treat her badly. This issue is lacking in detail as it does not set out any specific events and is general only. If, as the Claimant says, she was treated badly by others, the Tribunal find that this is not because of any action by Mr Downs or him encouraging others and was because of other matters. The Tribunal heard evidence for example that other staff felt intimidated by the Claimant and avoided her. Whilst no specific finding is made in this regard, this could be a reason for any treatment the Claimant complains of from others. Jan Whilst stowing in the isle (sic), near Frederick [no detail given] 2017 the back of the warehouse, I heard and one Frederick laughing and talking to other another person in the isle (sic) person` behind me. Just as I walked to the end of the isle (sic) to turn my trolley, he deliberately knocked the shelf causing a large bottle of drink to fall from a high self. If I had not moved the bottle would have definitely fallen on my head. He and the other person were laughing loudly and when he didn’t hear any reaction from myself he came round to pick up the bottle with a big grin on his face.

[46]The Claimant accepts that she did not report this to Mr Downs or anyone else at Amazon or PMP. Mr Downs said the first he knew of it was in these proceedings. When asked what he would have done if he had been told, he said that the person concerned would be immediately suspended and could be potentially dismissed for gross misconduct as this would be a serious health and safety issue in the warehouse. The Tribunal is surprised, given the complaints the Claimant did make, that she did not make a complaint to Amazon or PMP about this incident. There is no contemporaneous evidence of this happening and on balance the Tribunal finds that it did not happen. The Tribunal is satisfied that had Mr Downs or other management known of it, appropriate action would have been taken. Sunday Further instances of bullying occurred Frederick [no detail 30 April which cumulated into the following and one given] 2017 incident. Sunday morning Frederick, other Latifa, Trevon and Andrew were playing person` Monday “bashment” reggae music. The lyrics to 1 May the songs they were playing were very 2017 explicit, talking about female private parts., I did not find this music appropriate for the workplace but did not feel that it was my place to say anything as apart from Frederick, the others were Jamaican and know body (sic) else seemed to be offended by it. As they all seemed to think it was fun and entertaining which it wasn’t, but I decided to put it down to one morning. The next morning (Monday), I came into work and was doing “Fresh” when Frederick put the same inappropriate Reggae music on, this time the singer was talking about drugs (marijuana). Don’t’ get me wrong I am not saying that I have never listened to this music or that I minded that Frederick wanted to listen to Reggae music. What I disliked was the fact that he chose to put on “bashment” or “Dancehall” Reggae which has very explicit lyrics and can be seen as both offensive and misogynistic. That’s why more Jamaicans would not play this outside of a private, social or club setting, as we know that it can be offensive to some. So you definitely would not play it at work. I complained and Dean told them to turn it off.

[47]The Tribunal has considered the wording of this issue. Here the Claimant says that music was played which had explicit lyrics and she considered this to be inappropriate in the workplace. The Tribunal endorses this view. However, the Claimant does not say she was offended by the music, indeed she says she has listened to it in different surroundings and contexts. The wording indicates that the Claimant’s concern was that others may be offended. She does not say she was embarrassed, shocked, or that she felt that it affected her in the workplace. The key part of this issue is that when she told Mr Downs he immediately gave instructions that this music should not be played.

[48]Mr Downs said he could not make out the words of the music being played so was unaware of any explicit material in it. He said the Claimant simply said she did not like it and he acted on that. The Claimant accepts that she did not raise this again with Mr Downs. Mr Downs said that if she had he would have stopped music in the ‘Fresh’ department begin play altogether. The Tribunal find that Mr Downs was supportive of the Claimant in dealing with this complaint.

[49]The Claimant cites one time that music was played referring to female bodies, the other time she says it referred to drugs. The Claimant gave evidence that she meant that on both occasions female bodies were the subject of the lyrics. This does not assist her as she has not said she felt he dignity was violated and Mr Downs in any event acted swiftly to have the music turned off. Most of the issues relating to the music and the Claimant’s evidence relating to this complained about drugs being the subject matter and on balance the Tribunal find this was the main issue the Claimant had with that music. It is only when the music referencing drugs was played that the Claimant complained.

[50]The Claimant also complained that Frederik was dancing in a style mocking skank dancing. She says she told him that as he was not Jamaican, he should put his own cultural music on. In her evidence she said that she was upset by the dancing and the fun being made of this style of dancing. The Tribunal have checked its notes of the Claimant’s evidence. The judge’s notes record She said “Yes, why put my music on an take the mick out of it” and “What upset me was way he dancing and taking the mick out of the music as well. Fact he did not know what playing, it was offensive”. These are matters related to race not gender. The Claimant has not brought a race discrimination claim.

[51]The Respondent submitted that what offended the Claimant was cultural appropriation rather than the words of the lyrics. Given the way the Claimant framed this issue in her table, the Tribunal accepts this submission. The Claimant does not say in the issues that she was offended by the sexual references in the lyrics. Her concern appears to be that others would be which is why that music is normally played in private. The Tribunal finds that the Claimant’s evidence in cross examination made the focus of her issue with the music clear. Namely that she did not like someone who was not Jamaican making fun of Jamaican music and the references to drugs.

[52]The fact that Mr Downs acted promptly and stopped the music being played shows that there was no discrimination or harassment by him. Friday 5 Complaint No. 4 Frederick [no detail May The Following Friday I came in and Monique, given] 2017 Andrew, Monique, kaushika and Andrew Frederick, t on the same offensive music. and This time I reported it to Nora, she came Kaushika and told them that they needed to turn it off, to which Monique responded “so what should we listen to, Justin Bieber?” The continued to play the offensive music.

[53]This time Nora Regenye was the supervisor on the Claimant’s shift. Like Mr Downs she instructed that the music should not be played when the Claimant complained. Again, this was supportive of the Claimant. The Claimant accepted in cross examination that she had not repeated this complaint to Ms Regenye. The Tribunal repeats its conclusions above and finds this not to be less favourable treatment by Amazon and not harassment. Both supervisors acted appropriately and quickly. Saturday Complaint No.5 Frederick, [no details 20 May Came in to do “Fresh”, to find that they Aatifa, given] 2017 were playing offensive music, got to the Tevon point that I told Nora that I couldn’t work and with them anymore. She told me that it Andrew. was fine and that I could go and do something else.

[54]Again, this illustrates that Nora supported the Claimant allowing her to work elsewhere. The wording of this issue does not say that the Claimant complained about the music to Ms Regenye on this date and given in cross examination she said she only complained once, the Tribunal conclude that even if music was the problem, this was not put to Ms Regenye. Allegation 20 and 21 Sunday Came in and it was the same music Frederick, 21 May being played. So I sat in the toilet until Latifa, 2017 6.30 am, when “Fresh” was complete Tevon and I wouldn’t have to work with them. and Andrew Monday Repeat of previous day. Meeting with 22 May Natalia, where I was sacked.

[55]The Claimant did not complain to the supervisor of these shifts. The evidence is that if she had they would have taken appropriate action. The Claimant starts work at 5 am and therefore she was in the toilet for 1.5 hours. Mr Downs said that on the Monday, he was the supervisor and that there was no music being played at 5 am. He said this was because he was late in collecting the laptop computers and taking them to the ‘Fresh’ department. It is only from these computers that the music can be played in ‘Fresh’ over the loudspeakers. He told the Tribunal that when he got to the ‘Fresh’ area, the Claimant was not there and that he was told that she had been in the toilets from when she arrived at work. He tried to speak to the Claimant by sending someone into the toilets and when she came out asked if she was okay. He did not discuss why she was there as this was a matter for PMP to deal with as the Claimant’s employer. The Claimant disputed this, but on balance, the Tribunal prefer the evidence of Mr Downs.

Credibility

[56]A substantial part of this case relies on one person’s word against the other and there is very little contemporaneous evidence available. The Tribunal found both Mr Downs and Mr Howard to be credible witnesses and accept their evidence. They did not try to cast the Claimant as a terrible employee and accepted readily that she was experienced, and her work was good. Their issues were about her attitude.

[57]The Tribunal did not find the Claimant’s evidence to be credible. The Claimant was quick to take offense and raise issues where there was nothing to raise an issue about or take offence about. For example, she maintained that the Respondent had covertly recorded the incident between her and the security guard. The CCTV was clear in that it was a recording of a video being played on a computer monitor, hence the wobbles. She said there was no date or time on the recording when there was. The Tribunal had asked the Claimant to view the CCTV footage before she gave her evidence wo it was fresh in her mind but she did not make herself available even though the Respondent tried to find her and did not want to view it in the Tribunal when played to the panel.

[58]The Claimant’s refusal to comply with Tribunal orders and bring in evidence of her new job is relevant. The Tribunal politely asked several times for her to provide this information, but she simply said she would not do so.

[59]The Claimant makes spurious allegations against ACAS, saying that they left her suspicious telephone messages when they did not.

[60]The Claimant said that the security guard was tugging at her trouser leg and trying to pull up the back of her jumper. This is not what the CCTV footage showed. The footage showed the Claimant being treated in the same way as her colleague who was also captured on the CCTVG footage.

[61]The Tribunal found the Respondent’s evidence was to be preferred where there was a conflict of evidence which was not supported by any documentary evidence. Submissions

[62]The Respondent gave detailed oral submissions. The Claimant was given time to consider her response to those submissions in an adjournment. The Claimant provided some written submissions and a list of cases with comment. She did not wish to speak to her submissions but made a few comments on the Respondent’s submissions. In coming it is conclusion the Tribunal considered all submissions very carefully including the case law the Claimant referred to.

Conclusion

[63]Considering the findings above, the Claimant’s claims of direct sex discrimination and harassment are dismissed.

[64]The Respondent indicated it would make an application for costs if the Claimant was not successful in her claim. If an application is to be made it must be made no later than 28 days from the date this judgment is sent to the parties. The application must contain full grounds with a properly particularised schedule of the costs claimed signed by a partner of the law firm.

[65]On receipt of the application the Tribunal will issue directions including provision for the Claimant to respond in writing to the Respondent’s application and details of how the application will be dealt with (i.e on paper or in a costs hearing).

[66]The Claimant should note that in considering an application for costs the Tribunal can consider evidence of the Claimant’s means. This means that the Claimant will be expected to provide documentary evidence of income, savings and expenditure. Without this information the Tribunal will not be able to take her means into account when considering first whether to make an order for costs and second the amount of any costs order. The Claimant is referred to rules 74 to 79 of the Employment Tribunal Rules of Procedure 2013 and the Presidential Guidance note 7 which can be found online at www.judiciary.uk.

Conclusion

[1]This hearing was conducted by CVP due to the ongoing Covid-19 pandemic. This hearing was to hear the Respondent’s application for costs following the judgment promulgated on 27 April 2019. The Respondent made an application for costs on 23 May 2019 which appended amongst other matters, its schedule of costs. The Tribunal made an order which was sent to both parties on 5 June 2019 stating that the application was made in time and will be listed for a hearing to determine the application. Orders are made that on the before 26 July 2019 the parties should set out in writing and serve upon the other party in the Tribunal full submissions as to why costs should or should not be awarded pursuant to the employment Tribunal Rules of Procedure 2013 rules 74 to 84.

[2]Orders were made that: on or before 23 August 2019 the parties should set out in writing and serve upon the other and the Tribunal any response to the other parties full submissions and an request for the parties views as to whether the costs hearing could be dealt with on the papers to avoid having to attend a hearing in person.

[3]On 25 July 2019, the Respondent sent to the Tribunal and the Claimant its submissions in relation to costs. No submissions were received from the Claimant. On 14 October 2019, the Claimant emailed a document headed “Claimant’s response to submission on costs” which simply attached three documents showing universal credit payments for July, August and September 2019. The document in relation to the assessment for 3 August to 2 September showed that payment for that month was zero. No submissions were received from the Claimant as to why costs should not be awarded and there was no evidence provided by the Claimant of savings, income, expenditure, or any capital assets as ordered.

[4]On 26 November 2019, the Claimant appealed the Tribunal’s judgment the Employment Appeal Tribunal.

[5]On 8 November 2019, the Respondent wrote to the Tribunal providing a response to the Claimant’s submissions.

[6]Due to the volume of cases in the London South Employment Tribunal there was a delay in listing this matter for a hearing to consider the Respondent’s application for costs and it was listed for 6 May 2020 to be held in person. After this matter was listed, the Covid-19 pandemic meant that no substantive hearings could be held, and all hearings were converted into preliminary hearings by telephone. Notice of this hearing was sent to the parties on 12 February 2020 and the parties were notified on 4 May 2020 that the hearing had been converted into a telephone preliminary hearing.

[7]The Claimant did not participate in this hearing. Therefore, a one-day hearing was listed as the Claimant was not available to give consent to it being considered on the papers as requested by the Respondent. The order sent to the parties on 19 May 2020 gave the Claimant the option of confirming consent to the Respondent’s application of the matter being dealt with on papers. It was noted in the order that the Claimant’s information about her income was incomplete as it did not detail any employment she had, what salary she earns, savings, capital, outgoings and so on which would be required in order to take her means into account.

[8]As a consequence, the Claimant was ordered no later than 26 June 2020 to confirm if she was willing for the matter to be dealt with on the papers, by telephone or by videoconferencing and for the Claimant to provide up-to-date information of her financial situation to the Tribunal and to the Respondent. It was specifically mentioned that if the Claimant did not comply with the order, the Respondent’s application would be determined at a hearing based on the information the Tribunal had at that time.

[9]As at the date of this hearing, the Claimant has provided no further information regarding her means or any submissions in answer to the points made by the Respondent. The scant information she provided is now very out of date and as a result the Tribunal were unable to take her means into account. The Tribunal is satisfied that the Claimant was aware of the implications of not providing this information as it was clearly spelt out in the order.

[10]At the start of this hearing, the Tribunal, noting that the Claimant was not in attendance, delayed the start of the hearing for 15 minutes to see if she would attend. She did not. Notice had been sent to the Claimant setting out the login details required for the hearing at 17:07 on 12 October 2020 and the Tribunal is satisfied she had notice of the hearing arrangements. In any event if the Claimant had attended in person as originally planned, then the hearing could have been conducted as a hybrid hearing with the Claimant and Judge at the hearing and the members and representative for the Respondent by CVP.

[11]Counsel for the Respondent was invited to make submissions in support of its application for costs. The Respondent relied on the application for costs, the written submission on costs, its reply to the Claimant submission on costs, the judgment and referred to previous preliminary hearings.

[12]Rule 76 of the ET (Constitution and Rules of Procedure) Regulations 2013 sets out when a Tribunal has the power to make a costs order: 76 (1) A Tribunal may make a costs order ..., and shall consider whether to do so, where it considers that – (a) A party (or that party’s representative) has acted 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 has no reasonable prospect of success.

[13]Rule 78 sets out the amount of a costs order: 78 (1) a costs order may – (a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000 in respect of the costs of the receiving party; (b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, 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 an Employment Judge applying the same principles; ... .... (e) if the paying party and the receiving party agree as to the amount payable, be made in that amount (3) for the avoidance of doubt, the amount of a costs order under subparagraphs (b) to (e) of paragraph (1) may exceed £20,000.

[14]Rule 84 covers ability to pay: In deciding whether to make a costs ... order, and if so, in what amount, the Tribunal may have regard to the paying party’s ... ability to pay.

[15]In its submissions the Respondent said that: “The Tribunal is reminded of the general principles applicable: that costs are the exception, not the rule; that they are designed to compensate the receiving party for costs unreasonably incurred, not to punish the paying party for bringing an unreasonable case, or for conducting it unreasonably. The Tribunal should follow a 3-stage process: first, to decide whether the threshold in Rule 76 had been crossed, that is, whether a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing or conducting of all or part of the case. The threshold has clearly been crossed in this case. (Paragraph 7 Respondent’s submissions). Secondly, the Tribunal should then consider as an exercise of discretion whether that conduct merits a costs order. It is not automatic i.e. because the Tribunal has the power, it should exercise it. Thirdly, if the ET decided to make a costs order, they should consider the appropriate amount of costs incurred by the Respondent in defending the unreasonable claims. If this was less than £20,000, they could make a summary award, making the assessment themselves in broad terms and ordering the Claimant to pay it; in any case, they could if appropriate order a detailed costs assessment to be made, in either the County Court or by an Employment Judge; in that event the Tribunal should indicate what the assessment should cover; for example, by indicating an overall percentage, or by identifying the issues or claims where the unreasonable conduct had occurred, and ordering an assessment of all costs incurred in defending those claims or issues. In fixing the amount of an order, the Tribunal could, but are not obliged to, consider the Claimant’s ability to pay”. (Paragraph 8 Respondent’s submissions).

[16]The Respondent’s submissions went on to set out the following case law:a. Yerrakelva v Barnsley MBC

[2012] ICR 420

, which held: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had”. The case went on to hold that there was no need to determine whether there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed.

b. Keskar v Governors of All Saints Church England School and Another [1991] ICR held: “The question whether a person against whom an order for costs is being proposed to be made ought to have known that the claims he was making had no substance, is plainly something which is, at the lowest capable of being relevant, and we are quite satisfied from the decision itself, in the paragraph which I have read and need not repeat, that the industrial Tribunal did have before it the relevant material, namely that there was virtually nothing to support the allegations that the applicant made, from which they drew the conclusion that he had acted unreasonably in bringing the complaint”.

[17]The Respondent referred to the Claimant’s claims which were of sex discrimination and harassment and to the 21 individual claims that the Claimant made and pointed out that none of these had been found to be made out.

[18]The Respondent referred to the judgment generally and particularly to paragraphs 4 – 9. These are not set out verbatim here as reference can be made to the written judgment. In summary these paragraphs set out that the Claimant did not provide a written witness statement for the hearing as ordered by the Tribunal on 15 August 2018 (‘the order’). That the Claimant did not comply with the order requiring her to disclose all documents relating to remedy. That at the hearing the Claimant was asked about her documents relating to remedy and was asked to bring these documents to the Tribunal which the Claimant agreed to do but she subsequently refused to disclose them after the Tribunal rejected a small bundle she presented which included without prejudice correspondence between the parties (the Respondent says it told the Claimant on the first day of the hearing that without prejudice correspondence should not be placed before the Tribunal). The Claimant’s continued refusal to provide these documents despite having been ordered to provide them. This, the Respondent submitted showed a “blatant disregard and disrespect for the Tribunal and left the Respondent over a three day final hearing not knowing what amounts of money the Claimant was seeking which it was submitted was deliberate, completely intentional and vexatious”.

[19]The Respondent referred the Tribunal to paragraphs 18-21 of the judgment which again are not set out here. In summary they refer to the Claimant not linking the acts she complains of with her gender either explicitly or implicitly and that the Claimant’s case on music in the workplace was about cultural appropriation, reference to drugs and making fun of the Jamaican way of dancing which is not relevant to a claim for sex discrimination.

[20]The Respondent then referred to paragraphs 22 – 55 in which each of the Claimant’s 21 allegations were dismissed on the basis that there was either no evidence at all, or the Respondent’s witnesses were found to be more credible, or the events did not take place. The Respondent’s application for costs sets out a synopsis of the Tribunal’s findings of fact in relation to the 21 allegations.

[21]The Respondent submitted that the threshold test for making a costs award had been met.

[22]The Respondent then provided submissions on the amount of the award, pointing out that the Tribunal had broad discretion. The Respondent referred to Liddington v 2gether NHS Foundation Trust, UKEATPA/0287/16/DA which provided guidance on costs awards against litigants in person. The Respondent submitted that in its guidance, the EAT stated that whilst the standard of pleading expected of a legal representative did not apply to lay persons, Claimants should still be able to articulate in simple terms what was said or done, by whom and on what dates in order to clearly specify their claim. It was submitted that the EAT were keen to stress in this specific scenario that they had not found that the Claimant's inability to articulate her claim was unreasonable conduct in itself, however they did find that her lack of preparation for the hearings contributed to her inability to provide the relevant information. An award for costs against the Claimant was therefore upheld.

[23]The Respondent referred to the judgment dated 5 March 2018 of Employment Judge Martin in an earlier preliminary hearing where the Respondent applied to strike out the Claimant’s claim or alternatively that a deposit order was made. That judgment recorded at paragraph 16 that the Claimant’s claims were hard to discern as she had not provided information that the matters cited happened because of her gender and there were no particulars of the dates and time she alleged the matters happened or how she says any matters happened because of her gender. The Judgment declined to strike out the Claimant’s claims noting that the bar to striking out a discrimination claim was very high, and this application was refused. The application for a deposit was refused even though many of the allegations were considered to have little reasonable prospect of success on the basis that the Claimant said she had limited means.

[24]On 27 February 2019, the Respondent wrote to the Claimant on a “without prejudice save as to costs basis". In this letter, the Respondent set out in detail its reasons why it would be successful in defending the claims. The Respondent went into detail about why it said the Claimant’s claims would fail and referred to the judgment of 5 March 2018 referred to above. The Respondent offered to settle the Claimant’s claim for £5,000. This letter clearly set out the consequences if the Claimant chose not to accept this offer namely that the letter would be produced to the Tribunal in an application for costs if the Claimant was awarded less than this amount. The Claimant did not accept this offer.

[25]The Respondent made a further attempt to settle proceedings by way of a second letter dated 28 March 2019 in which the offer to settle increased to £10,000. The consequences of not accepting this were set out in this letter. The Claimant did not accept this offer.

[26]The total costs incurred by the Respondent in defending this claim amounted to £33,077.02 in respect of fees and £15,415 plus VAT in respect of disbursements. The Respondent’s schedule shows that it was after their offers were rejected that it embarked in the main preparation for hearing. The Respondent limited its application for costs to the maximum amount that the Tribunal can award on a summary basis (£20,000). The Respondent, in response to a question from the Tribunal, said that the total costs incurred after the 27 February 2019 amounted to £19,909.39 but that this did not include the Respondent’s costs of attending this hearing.

[27]The Tribunal fist considered whether the threshold in Rule 76 had been crossed, that is, whether the Claimant has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing or conducting of all or part of the case. The findings set out above show that from an early stage (at least from 5 March 2018) the Claimant had been on notice from the Tribunal that it considered that parts of her claim had little reasonable prospect of success. This is clearly set out in the judgment. This coupled with the two detailed without prejudice save as to costs letters sent by the Respondent in February and March 2019 should have given the Claimant pause for thought about the veracity of her claims. As pointed out by the Respondent, the Claimant refused to provide details of her income for remedy purposes, and that the absence of this information would mean that the only remedy the Claimant could have if she was successful was for injury to feelings. Notwithstanding this the Claimant proceeded with all 21 individual allegations necessitating the Respondent in defending them.

[28]The Claimant acted unreasonably in not providing a witness statement for the hearing despite being ordered to do so. This meant that the Respondent did not have advance notice of her evidence resulting in a further witness having to be called to rebut allegations which only came to light during the hearing. The Claimant acted unreasonably in not complying with the Tribunal’s orders to provide documentation relating to remedy. The Claimant had found alternative employment by the time of the full merits hearing. The Claimant produced a small bundle containing without prejudice communications despite the Respondent informing her on day one that these communications should not be put before the Tribunal, this is unreasonable conduct. Further examples of the Claimant’s conduct are found in the judgment at paragraphs 18-21.

[29]The Tribunal has compared the reasons set out in the judgment from paragraph 22 – 55 with the details of the costs letters sent by the Respondent. The Reasons put forward by the Respondent as to why the Claimant’s claim would fail are remarkably similar to the findings made by the Tribunal.

[30]Secondly, the Tribunal finds that the Claimant has acted unreasonably in a manner that merits a costs award being made. The Claimant has shown a blatant disregard of the Tribunal process by not complying with normal case management orders. However, the most unreasonable conduct of the Claimant was her refusal to accept the without prejudice offers made by the Respondent. The second offer of £10,000 would if this were expressed as an injury to feelings award put it in the middle Vento band. These letters were very clear as to the weaknesses in the Claimant’s claims and the consequences of continuing with them.

[31]Thirdly, having made these findings, the Tribunal went on to consider the appropriate amount of costs incurred by the Respondent in defending claims. The Tribunal considers that the Claimant acted particularly unreasonably in rejecting the offers of settlement and continuing with her claim. Therefore, it has awarded the Respondent’s costs from the date of the first costs letter namely 27 February 2019. It notes that the costs incurred from that day forward (excluding attendance at this hearing) amounts to £19,909.39.

[32]As set out above, the Tribunal has not been able to take account of the Claimant’s ability to pay any award as the Claimant has not provided up to date financial information as ordered by the Tribunal. The Tribunal has shown that it does take ability to pay into account when such information is provided as shown by the decision on the application for a deposit order where it was declined as the Claimant gave some information of her financial situation at that time.

[33]The Claimant has not participated in the cost’s application save for some very scant financial information over a year ago. This application could easily have been decided on the papers had the Claimant participated and provided submissions. This would have reduced the Respondent’s costs and is unreasonable conduct. The Tribunal has therefore awarded £20,000 to take account of the Respondent’s costs in part of having to attend this hearing.