Mr C IsidoreClaimantABM Aviation UK LimitedRespondentDate 12 September 2024
JUDGMENT
The claim is struck out.
REASONS
[1]By a letter dated 13 May 2024 the Respondent applied to the Tribunal to strike-out the Claimant’s claim because:• the manner in which the proceedings have been conducted by or on behalf of the claimant has been scandalous and/or unreasonable (pursuant to Rule 37(1)(b) of the Employment Tribunals Rules of Procedure 2013 (the ET Rules)).[2]By emails dated 30 May 2024 and 10 June 2024 the Respondent applied to the Tribunal to strike-out the Claimant’s claim because:• the Claimant had not complied with the Order of the Tribunal dated 26 March 2024 (Rule 37(1)(c) of the ET Rules); and• it had not been actively pursued (Rule 37(1)(d)).[3]The Respondent renewed those strike-out applications, on the above-listed bases, orally in a hearing of today’s date, and added a further ground:• that it is no longer possible to have a fair hearing in respect of the claim (Rule 37(1)(e)).[4]The essence of the Respondent’s grounds for pursuing strike-out are that it says:a. The Claimant ceased employment with it on 30 November 2022, when his employment transferred to a third party pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), and that upon that transfer, any claims the Claimant had for outstanding holiday pay, unpaid wages or disability discrimination (his complaints in this case) transferred as a matter of law to that third party, and therefore his claim has no reasonable prospect of succeeding against the Respondent;b. The Claimant, by failing to disclose documents relevant to his TUPEtransfer to that third party and by his continued pursuit of his claim when an explanation of the fact that TUPE automatically transfers such liabilities to the transferee was explained to him, has behaved in a scandalous manner;c. The Claimant, by his repeated failure to comply with Tribunal Orders to clarify his disability discrimination complaint and to produce a schedule of loss, has not complied with those Orders;d. In light of the above behaviour, it is no longer possible to have a fair hearing.[5]The Claimant has failed to make sufficient representations, in writing or orally, why this should not be done.[6]In particular, the Tribunal notes that, in oral and written representations to the Tribunal the Claimant maintained that he had not transferred to the third party pursuant to TUPE. However, the Claimant admitted that he had entered into a COT3 settlement of a claim against the third party, and upon examination of the Claim Form he presented in those proceedings the Employment Judge could see that the Claimant had stated to the Tribunal in those proceedings that he did TUPE-transfer into the third party’s employment on 1 December 2022. Furthermore, the respondent in those proceedings (the transferee) agreed that the Claimant transferred into its employment on that date.[7]The Employment Judge concluded, in light of those facts, that:a. The Claimant has no reasonable prospect of succeeding with his claim in this case against the Respondent; andb. The manner in which the Claimant has conducted these proceedings has been scandalous and vexatious.[8]The claim is therefore struck out pursuant to Rule 37(1)(a) and Rule 37(1)(b).[9]The hearing fixed for 14 to 16 May 2025 will not take place.[1]The Claimant’s application for reconsideration of the judgment striking out his claim given in this matter on 12 September 2024 is refused, and the decision in that judgment is confirmed.
BACKGROUND
[2]The Claimant’s Claim Form was presented to the Employment Tribunal on 16 January 2023. The Claimant claimed that: a) He had been wrongfully dismissed; b) He had been discriminated against on the grounds of disability; c) He was owed compensation in respect of accrued but untaken holiday pay; and d) There had been a failure to inform and consult in respect of him in relation to an impending transfer pursuant to Regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).[3]The Claimant withdrew his complaint in respect of the failure to inform and consult in relation to an impending TUPE transfer on 16 April 2024, and it was dismissed by the Tribunal on 12 September 2024.[4]The complaints were resisted by the Respondent, and it applied to strike-out the Claimant’s claim on any one of four bases: 1 of 7 a) (By letter dated 13 May 2024) That the manner in which the proceedings had been conducted by the Claimant had been scandalous and/or unreasonable (pursuant to Rule 37(1)(b) of the Employment Tribunals Rules of Procedure 2013 (the ET Rules)); b) (By emails dated 30 May 2024 and 10 June 2024) That the Claimant had not complied with the Order of the Tribunal dated 26 March 2024 (pursuant to Rule 37(1)(c)); c) (By emails dated 30 May 2024 and 10 June 2024) That the claim had not been actively pursuant (pursuant to Rule 37(1)(d)); and d) (Orally in the hearing of 12 September 2024) That it is no longer possible to have a fair hearing in respect of the claim (pursuant to Rule 37(1)(e)).[5]The factual background relevant to understanding the Tribunal’s conclusions was as follows: a) The Claimant started working for the Respondent on 6 May 2022 as a bus driver at Gatwick Airport; b) On 14 October 2022 the Respondent wrote to affected staff to inform them that it had lost the contract to operate the bus service at Gatwick Airport, and that they would TUPE-transfer to the successor supplier – NCP Limited (NCP); c) In the process that followed, the Claimant expressed an interest in remaining with the Respondent after the contract transferred to NCP, and conversations took place about possible alternative roles that the Claimant could be assigned to, but those roles were not suitable for the Claimant; d) The Respondent’s contract to supply the relevant bus services came to an end on 30 November 2022, and NCP commenced providing those services. The Respondent said that the Claimant TUPE-transferred into NCP’s employment on this date; and e) The Respondent averred that NCP dismissed the Claimant on or around 12 January 2023.[6]The Claimant disputed that he had TUPE-transferred into NCP’s employment.[7]However, in the hearing of 12 September 2024: a) The Claimant admitted that he had entered into a COT3 settlement of a claim against NCP, in return for a payment to him of cash from NCP by way of settlement, and he gave the Tribunal the case number for that matter; and b) When the Employment Judge looked at the case number for that COT3 claim and the Claim Form the Claimant presented in those proceedings, the Employment Judge could see that the Claimant had stated to the Tribunal in that matter that he did TUPE-transfer into NCP’s employment 2 of 7 on 1 December 2022. Furthermore, NCP agreed that the Claimant transferred into its employment on that date.[8]In light of that information, at the hearing on 12 September 2023 the Tribunal determined to strike-out the Claimant’s claim on the grounds that: a) The Claimant had no reasonable prospect of succeeding in his claim against the Respondent (Rule 37(1)(a)); and b) The manner in which the Claimant had conducted the proceedings had been scandalous and vexatious (Rule 37(1)(b)). APPLICATIONS[9]The Claimant applied, under Rule 71 of the ET Rules, for reconsideration of my decision on 12 September 2024 to strike-out his claim.[10]The Claimant’s reasons for applying for reconsideration of that decision are that: a) The Respondent’s conduct in making threats of pursuing costs was not appropriate; b) He did comply with the Tribunal’s Order of 26 March 2024, and did actively pursue this claim; c) The Respondent’s previous applications to strike-out the Claimant’s claim had not been successful; d) At the time when the TUPE-transfer of the Claimant’s employment to NCP was anticipated, the Claimant objected to that TUPE-transfer; e) He says he did not fail to disclose any relevant document; f) He did not consent to TUPE-transfer into NCP’s employment; g) He was dismissed by the Respondent on 24 November 2022, ahead of the scheduled TUPE-transfer, as shown by a P45 from the Respondent; h) He had provided a schedule of loss in compliance with the Tribunal’s Orders; i) He made two different claims, one against this Respondent and one against NCP, because of the limitation process and approaching statutory deadlines; j) He only became aware of the P45 (dated 24 November 2022) issued by the Respondent in this case in respect of him when it was disclosed to him in September 2023. It was the disclosure of that P45 that caused the Claimant to think that he had no reasonable prospect of succeeding in his claim against NCP, which is why he entered into a COT3 settlement agreement with NCP; 3 of 7 k) The fact that NCP considers that the Claimant TUPE-transferred into its employment does not mean that occurred; and l) He objects to his claim being struck-out on the basis of Rules 37(1)(a) and Rule 37(1)(c) when, as a litigant-in-person, he does not know what those rules are. RULES[11]The relevant Rule of the ET Rules dealing with strike-out is Rule 37. The first part of that Rule sets out the grounds for strike-out: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response 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 or response (or the part to be struck out).”[12]The Rules on reconsideration are set out in Rules 70 to 73 of the ET Rules.[13]Rule 70 provides that: “Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”[14]Rule 71 sets out the conditions on which a party may make an application for reconsideration: “Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days 4 of 7 of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary.”[15]Rule 72 deals with the process the tribunal must follow regarding an application made under Rule 71: “Process (1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked… the application shall be refused and the Tribunal shall inform the parties of the refusal…” JURISDICTION TO RECONSIDER THE JUDGMENT REACHED[16]The Claimant’s application was made within 14 days of the date on which the written record of the judgment was sent to him. While the judgment was made on 12 September 2024, it was only sent by the Tribunal Office on 17 September 2024. The Claimant’s application was made on 28 September 2024.[17]The Tribunal struck out the claim on the basis that it has no reasonable prospect of success (Rule 37(1)(a)), and the manner in which the Claimant had conducted these proceedings has been scandalous and vexatious (Rule 37(1)(b)) (as the judgment described in paragraph 7).[18]As the claim was not struck out pursuant to Rule 37(1)(c) (non-compliance with Tribunal orders) or Rule 37(1)(d) (failure to actively pursue), the grounds set out by the Claimant described in paragraphs 10 b), e) and h) above provide no reasonable prospect of the original decision being varied or revoked.[19]The grounds for reconsideration identified by the Claimant in paragraphs 10 a), c) and l) above are not relevant to the bases on which the Tribunal struck out the claim, and do not cause the Tribunal to think that reconsideration is necessary in the interests of justice.[20]The grounds for reconsideration set out in paragraphs 10 d) and f), that the Claimant did not TUPE-transfer to NCP, are totally contradicted by the case he presented to this Tribunal in case number 2301924/2024, where the Claimant wrote: “On 01st December 2022 I was transferred [with a handwritten “(TUPE)” written above it] to National Carpark Limited (NCP).” This was the basis on which the claim in this case was struck out under Rule 37(1)(b) – as provided by that 5 of 7 Rule, the manner in which these proceedings have been conducted by the Claimant have been scandalous, unreasonable or vexatious. On the one hand the Claimant has told the Tribunal in that case, against NCP, that he TUPEtransferred into its employment on 1 December 2022, and in settlement of his claim against NCP he has accepted compensation. On the other hand, he has told the Tribunal in this case, against the Respondent, that he did not TUPEtransfer, and he has sought compensation for, among other things, notice pay against the Respondent. This is scandalous, and the fact that the Claimant has repeated his assertions in his reconsideration that he did not TUPE-transfer to NCP does not change the Tribunal’s assessment of his behaviour.[21]The explanation the Claimant offered, in the ground for reconsideration set out in paragraph 10 i), that he made two different claims because of the limitation process and statutory deadline, is unpersuasive. The Respondent in this case repeatedly asked the Claimant to clarify his position as to whether he had brought a claim against NCP, and if so, in what terms, and the Claimant did not answer. The proper course, if the Claimant was unsure whether he had TUPE-transferred or not (which is not a position he has asserted in either case) would have been to bring a claim against both NCP and the Respondent, and ask the Tribunal to decide what happened. Given that NCP, in case number 2301924/2024, accepted that the Claimant had TUPE-transferred into its employment, that would have resolved at least some of the complaints against the Respondent in this matter. While the Claimant is right, in paragraph 10 k), that the fact that NCP considers he TUPE-transferred into its employment is not determinative, but when the complete picture reveals that the Respondent, NCP and the Claimant (in one of his claims) say that he did, that is weighty support for the fact that he did, and this is the basis that the Tribunal concluded that his claim in this case had no reasonable prospect of success (Rule 37(1)(a)).[22]There is no requirement for an employee to consent in order to be TUPEtransferred, as the Respondent has explained to the Claimant, and the Employment Judge made very clear in the hearing on 12 September 2024. The ground for reconsideration set out at paragraph 10 f) is unpersuasive, and was a point made and considered at the hearing.[23]The Claimant also raised the fact that the Respondent had issued him with a P45 as supporting his contention that he was dismissed by the Respondent in the hearing (the ground for reconsideration set out in paragraphs 10 g) and j)). The Respondent said that it is standard practice that a P45 is issued at the time of a TUPE-transfer, so that HMRC is informed that the Respondent no longer employed the Claimant. I was satisfied with that explanation at the time, and no new information has been shared as part of the reconsideration application in that regard.[24]In summary, the grounds for reconsideration have no reasonable prospect, either individually or collectively, of causing the original decision to be varied or revoked. 6 of 7[25]For the reasons set out above, the Claimant’s application for reconsideration fails and that decision is confirmed. EMPLOYMENT TRIBUNALS Heard at: London South On: 1 May 2025 Claimant: Mr C Isidore Respondent: ABM Aviation UK Limited Before: Employment Judge Ramsden Representation: Claimant Non-attending Respondent Mr A O’Neill, Solicitor RESERVED COSTS JUDGMENT The Respondent’s application for costs
BACKGROUND
[1]On 3 October 2024 the Respondent made a written application for costs under Rule 76(1)(a) and (b) of the Employment Tribunal Procedure Rules 2024 (the ET Rules). That application followed a judgment on 12 September 2024 striking out the Claimant’s claim.[2]The Respondent contends that the Claimant’s conduct of the proceedings was scandalous, unreasonable and without reasonable prospects of success.[3]Specifically, the Respondent avers that: a) Knowing he had transferred from the Respondent’s employment into the employment of NCP pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), the Claimant brought two Employment Tribunal claims, one against the Respondent and another against NCP, based on contradictory factual positions – that he had not TUPE-transferred (in his claim against the Respondent), and that he had TUPE-transferred (in his claim against NCP). He used this directly opposing representations of the facts to seek to achieve settlement of each of those cases against each respondent. The Respondent characterises 1 of 23 that behaviour as scandalous and says that the claim against it had no reasonable prospect of success. b) As part of the terms of a settlement agreement reached with NCP, the Claimant obliged NCP not to cooperate with the Respondent, thereby frustrating the Respondent’s ability to resist this Claim and causing the Respondent to be engaged in unnecessary litigation and costs – again, this conduct is criticised in the strongest terms by the Respondent as scandalous. c) The Claimant failed to comply with Tribunal Orders to provide his schedule of loss, and applied ahead of the strike out hearing to vacate that hearing, all in an attempt to thwart the Respondent’s resistance of his Claim – this behaviour is, the Respondent says, unreasonable; and d) The Claimant’s behaviour generally has been scandalous – saying on the one hand that he needed more time to comply with procedural steps in this Claim, and on the other submitting detailed documents trying to vacate hearings and the like.[4]The Respondent seeks an Order for the Claimant to pay a sum equal to all of its costs. At the time of its making that application, those costs stood at £10,470 plus VAT, and as at the date of the hearing stood at £14,241.
The hearing
[5]The Respondent was represented in the hearing by Mr O’Neill. The Claimant did not attend.[6]An in-person hearing to determine the Respondent’s costs application was listed on 19 December 2024. The Claimant emailed the Tribunal at 17:46 on 28 April 2025 (two days before this hearing) to inform it that he would be unable to attend this hearing due to lack of funds to travel.[7]The Claimant emailed the Tribunal again on 30 April 2025 at 17:32, to say that he could attend the hearing at a later date by using his mobile telephone. In light of previous difficulties with the Claimant attending by that means, and the longstanding direction that the parties attend in person, that application was refused, as was the application for postponement.[8]As the Claimant was not expected to attend, the Respondent requested to attend the hearing remotely, and that application was granted given the Respondent has managed to successfully attend previous hearings remotely without IT issues. The Tribunal also considered that appropriate in light of the subject-matter of the hearing, so as to reduce the Respondent’s costs.[9]When the Claimant did not attend on the morning of the hearing, the Tribunal clerk telephoned the Claimant using the two telephone numbers provided by him on file to say the Employment Judge would permit him to try to attend the hearing 2 of 23 by CVP. The Claimant could not be reached on either of those two telephone numbers.[10]The Respondent’s representative had a third telephone number for the Claimant, and provided that to the Clerk. The Claimant answered a call to that number, and when the Clerk offered for him to dial in to the hearing the Claimant said that he was not ready to attend the hearing today, and it would need to be postponed.[11]Rule 47 provides that: “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.”[12]The Employment Judge attended the hearing and heard representations from the Respondent that the hearing should proceed. This matter, the Respondent said, should have been ready for 14 February 2025, the date for which this matter was originally listed (before late postponement due to lack of judicial resources).[13]The Employment Judge agreed, concluding that it was in the interests of justice that the hearing proceed in light of the facts that: a) The Claimant should have been ready for this hearing for at least six weeks given the previous listing. b) The Employment Judge did not consider that the Claimant would be any better prepared on a subsequent date; c) When the Tribunal checked with the Claimant earlier in the week as to whether all his documentation had been received, he confirmed that it had all been provided ahead of the scheduled February hearing. That included the Claimant’s written representations on the Respondent’s costs application dated 13 February 2025. d) The Respondent’s application relates to costs which it says it incurred because of the Claimant’s unreasonable conduct, and any such costs would be increased by further postponement; and e) Having read the Claimant’s written submissions, documentary evidence and email correspondence in the Bundle, the Claimant’s position was largely understood, and he was fully apprised of the basis for the Respondent’s argument, having seen its written application in October 2024.[14]The Respondent had prepared a hearing bundle of 245 pages, an eight-page chronology, a skeleton argument and a log of the costs it has incurred in relation to this matter. An updated log, to refer to the further costs incurred by preparation for and attendance at this hearing, was referred to by the Respondent’s representative in the course of the hearing, and that was sent to the Tribunal shortly after the hearing concluded. 3 of 23
Facts
[15]The Claimant commenced employment with the Respondent as a bus driver on 6 May 2022. The Claimant worked at Gatwick airport.[16]On 14 October 2022 the Respondent informed the Claimant and others that it had not been successful in re-tendering for the bus service at Gatwick airport on which the Claimant and those others worked, and that the service would instead be provided by NCP. The Respondent told the Claimant, and others, that they were expected to transfer into the employment of the new provider, NCP, pursuant to TUPE.[17]Ahead of the change of service provider from the Respondent to NCP, the operation of TUPE was explained to affected employees, as were the vacant roles with the Respondent that would remain after the change in service provider. Some of the Claimant’s colleagues chose to remain with the Respondent taking up those vacant roles.[18]The Claimant enquired about options for remaining in the Respondent’s employment, but the Claimant was not offered any alternative role, did not change roles and did not object to the transfer of his employment.[19]Allegations of misconduct on the part of the Claimant were made against him by two of his colleagues on 16 November 2022. A fact-finding meeting was held with him on 17 November 2022.[20]The Respondent produced a P45 for the Claimant that stated that his employment with it terminated on 30 November 2022.[21]The change of service provider took effect on 1 December 2022. A number of the Claimant’s colleagues TUPE-transferred into NCP’s employment on that date.[22]Also on 1 December 2022, the Claimant was suspended from his role pending a disciplinary hearing concerning potential gross misconduct which was due to take place on 4 December 2022.[23]The disciplinary hearing scheduled for 4 December 2022 was postponed.[24]The Claimant commenced ACAS Early Conciliation in respect of a dispute with the Respondent on 15 December 2022, and that process concluded on 21 December 2022.[25]A disciplinary hearing proceeded in the Claimant’s absence on 10 January 2023.[26]The Claimant was dismissed on 12 January 2023.[27]The Claimant presented his Claim Form in this matter to the Employment Tribunal on 16 January 2023 (this Claim). The Claimant complained that: a) He had suffered disability discrimination. b) He was entitled to a redundancy payment that had not been paid to him; 4 of 23 c) He was owed notice pay, holiday pay, arrears of pay and other payments; and d) The Respondent had not complied with the terms of TUPE as regards an information and consultation process.[28](Unbeknownst to the Respondent) On 21 February 2023 the Claimant commenced ACAS Early Conciliation against NCP, and that process concluded on 2 March 2023.[29]The Respondent wrote to the Claimant on 29 July 2023, ahead of filing its Response to the Claim: a) Explaining the key principles of TUPE. b) Expressing the belief that the Claim had no reasonable prospect of success and should be struck out. c) Expressing the belief that the Respondent would be entitled to seek costs if the Claim was struck out. While acknowledging that costs awards are exceptional in this jurisdiction, the letter stated that the Respondent’s representatives had recently succeeded in two applications for costs to the value of £17,250 and £12,000 respectfully; and d) Inviting the Claimant to withdraw the Claim by 4 August 2023, and anticipating that if that were to occur the Respondent would not pursue costs incurred to that point.[30]The Respondent filed its Response on 23 August 2023.[31]On 8 September 2023 the Claimant sent to the Tribunal (and the Respondent) a document entitled “Response to Grounds of Resistance”, which included the statement that: “The Claimant has never worked for NCP, has never resigned from ABM and to this day, has not been allowed to return to work”.[32]The Respondent wrote to the Claimant on 21 September 2023, stating its view that the Claimant was seeking to mislead the Tribunal by the terms of the Claim, urging the Claimant to withdraw the Claim, and warning that the Respondent would be seeking a costs order against him whether he withdrew or not. In that same letter the Respondent required the Claimant to provide it with various documents relating to his employment with NCP. The Claimant did not provide those documents at that time.[33]On the same date the Respondent applied to the Tribunal for an Order for Specific Disclosure against the Claimant, specifying that he was to provide documents to it in respect of his employment with NCP.[34]The Claimant emailed the Respondent on 2 October 2023, which included: “the documents which you are requesting can’t be delivered as I have never worked for that company”. In a separate email to the Respondent on that date, the 5 of 23 Claimant wrote: “I confirm again. I have never worked for NCP I can’t stop them if they want to give me free money, but I have never worked for them”.[35]On 13 February 2024 the Respondent applied for a Third-Party Disclosure Order, requiring NCP to provide the Respondent with documents relating to its employment of the Claimant.[36](Also unbeknownst to the Respondent) The Claimant presented a Claim Form to the Tribunal in March 2024 against “NCP Limited National Car Parks Ltd”, and that was given the case number 2301924/2024 by the Tribunal (the Second Claim). That Claim Form had an attachment which recited the Claimant’s employment history, and included: “I was employed by OMNI Services [handwritten above that, “OMNISERV”] on 24th February 2020. On 06th May 2022 I signed an additional contract with ABM Aviation Ltd / Blackjack. On 01st December 2022 I was transferred (TUP) [handwritten above that, “(TUPE)”] to National Carpark Limited (NCP)”. Also attached to the Claim Form in the Second Claim was a letter from NCP to the Claimant dated 5 January 2023, confirming that it would like to arrange for an occupational health assessment to obtain a report on the Claimant’s current medical condition.[37]On 20 March 2024, a Preliminary Hearing for Case Management in this Claim was heard by EJ Emery. In that hearing, among other Orders made, EJ Emery: a) Refused the Respondent’s Third-Party Disclosure Order; and b) Ordered that the Claimant send to the Respondent a schedule of loss by 16 April 2024.[38]NCP filed a Response to the Second Claim on 8 April 2024. (The Respondent was unaware of that claim and the response to it.) NCP’s Response confirmed that the Claimant TUPE-transferred into NCP’s employment on 1 December 2022, and that he was dismissed for gross misconduct by NCP on 12 January 2023.[39]The Claimant did not send a schedule of loss to the Respondent by the Ordered deadline of 16 April 2024.[40]The Tribunal was informed by ACAS that the Second Claim was the subject of a binding COT3 settlement agreement on 19 April 2024, and the Claimant emailed the Tribunal on the same date to confirm that and withdraw the Second Claim. A copy of that COT3 is included in the Bundle for this hearing, and the typed unsigned version of that agreement contains the following provisions: a) An undertaking by NCP to pay £700 to the Claimant as an ex-gratia payment without admission of liability by way of settlement; 6 of 23 b) An undertaking by each of the Claimant and NCP to keep the existence and terms of that agreement confidential except where disclosure is required by law (among other limited exceptions); c) An undertaking by NCP not to share any documents “held on file during the course of the claimants [sic] employment with the respondent to any third-party including ABM Aviation Ltd, unless required by law or by a tribunal for the purposes of legal proceedings”; and d) An undertaking from the Respondent that it “will at the request of any perspective [sic] employer provide the claimant with a factual reference (see appendix 1)”. That appendix contained an agreed form reference in the following terms: “We confirm that Mr Claude Isidore was employed by National Car Parks Ltd from 6th May 2022 until 12th January 2023 in the capacity of PCV Driver.” A further version of that agreement, signed by both parties and annotated by the Claimant, contains the first three of those above-quoted provisions, but the clause regarding reference and the related appendix were subject to manuscript amendments by the Claimant so as to read: “The respondent will at a request of any perspective employer [sic] provide the claimant with a factual reference (see appendix 1) [then follows the manuscript amendments:] WHICH WILL SAY WAS NOT EMPLOYED WITH NCP.” Then, handwritten by the Claimant next to the signature block that follows: “NO NEED FOR REFC ITS NOT PART OF COD3”. Appendix 1 of that version has also been amended in two ways in manuscript by the Claimant. Firstly, the word “NOT” has been written at the end of an arrow above the typed text, so that would read: “We can confirm that Mr Claude Isidore was [manuscript addition:] NOT employed by National Car Parks Ltd from the 6th of May 2022 until 12th January 2023 in the capacity of PCV Driver”. Then all the text of the Appendix has been crossed through and manually written at the top of the page by the Claimant are the words “NO NEED FOR REFERENCE”.[41]On 8 May 2024 the Claimant sent an email purporting to be his schedule of loss. This was a paragraph of narrative which was difficult to understand. It included the following: “the climate try to find for Job due to his disability and health condition was difficult, finally secured the job and now the climate is working, since the climate was dismissed or a P 45 was generated on the 24th November 2022. The climate lost about £35,000 in earnings”.[42]On 13 May 2024, the Respondent sent the Claimant an email headed “Without prejudice Save as to Costs”, which withdrew previous offers of settlement, stated that the Respondent will be filing a Response to the Claim, and that it will be making an application to strike out that Claim. 7 of 23[43]A later email also headed “Without prejudice Save as to Costs” on 16 May 2024 refers to the fact that the Respondent had previously offered the Claimant £1,000 to settle the Claim, which rose to £1,500, but those offers had been withdrawn.[44]On 20 May 2024 EJ Mclaren wrote to the parties and included some guidance for the Claimant on schedules of loss, together with a template document that he was asked to complete and return by 7 June 2024.[45]On 3 June 2024, further guidance of schedules of loss and an extension to the deadline to provide it to 14 June 2024 was given to the Claimant by EJ Heath.[46]On 7 June 2024, the Claimant sent an envelope to the Respondent’s representative by recorded delivery which contains numerous blank sheets of A4 paper.[47]On 14 June 2024 the Claimant emailed a photograph of the template Schedule of Loss sent to him by the Tribunal with handwritten details added. That included, written by hand against the entry on the template for lost wages between the date of dismissal and the present date or date of hearing: “NORMAL WAGES IS £33.000 A YEAR. ON BENEFITS £12.0000 ONLY.?”.[48]On 5 September 2024 the Claimant applied to vacate the hearing listed for 12 September 2024 to consider the Respondent’s strike out application, on the basis that “there is no new issue that requires addressing for this hearing”.[49]On 12 September 2024 this Claim came before me to consider the Respondent’s application to strike it out. I did so on the basis that: a) (Pursuant to Rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013) The Claimant had no reasonable prospect of succeeding with the Claim against the Respondent, because he, the Respondent and NCP all agreed that the Claimant’s employment TUPE-transferred to NCP on 1 December 2022; and b) (Pursuant to Rule 37(1)(b) of those same Rules) The manner in which the Claimant had conducted these proceedings had been scandalous and vexatious, as he had represented to the Tribunal in the Second Claim that he had TUPE-transferred to NCP, and he had represented to the Tribunal in this Claim that he had not. In that hearing the Respondent indicated that it wished to make an application for costs. The Claimant said that he would not be able to use the mobile telephone he was using to attend that hearing for any further time, and so the Tribunal said that any costs application was to be made by the Respondent in writing.[50]The Respondent made an application for a Costs Order against the Claimant on 3 October 2024.[51]On 14 October 2024, the Claimant made representations in response to the Respondent’s application for a Costs Order. That detailed four-page document: 8 of 23 a) Accused the Respondent’s solicitor of misleading the Tribunal about the Claimant’s telephone and technology issues. b) Reiterated the point made by the Claimant orally in the hearing of 12 September 2024 that he is impecunious. c) Expressed the view that the Respondent had inflated the value of the costs sought. d) Cited part of EJ Emery’s Case Management Orders, which referred to EJ Emery’s concerns about correspondence from the Respondent’s representative to the Claimant, that it was “making threats of costs when it is unclear what the basis of the respondent’s defence is”; and e) Referred to the fact that the Claimant was not, in his schedule of loss, claiming “any” loss of earnings.[52]On 25 October 2024 the Claimant lodged a Notice of Appeal with the Employment Appeal Tribunal against the judgment striking out this Claim on 12 September 2024.[53]A judgment dismissing that Second Claim was promulgated by the Tribunal on 27 November 2024.[54]The Claimant applied for reconsideration of that judgment dismissing the Second Claim on 9 December 2024, saying that: a) He wished to resile from the COT3 agreement entered into with NCP, and upon doing so he would return the monies received from NCP; and b) He wished to reinstate his claim – that appears to be a reference to reconsideration of the strike-out of this Claim (against ABM). His explanation was that he was offered an alternative role to remain in the Respondent’s employment (i.e., ABM’s), and that “The claimant has never worked for NCP in any capacity”.[55]I reached a judgment on reconsideration on 17 December 2024. I determined that that application was refused as his grounds had no reasonable prospect, either individually or collectively, of causing the original decision to be varied or revoked. That decision was promulgated by the Tribunal on 6 January 2025.[56]On 19 December 2024, the Tribunal gave the parties notice of a hearing to consider the Respondent’s costs application to be held on 14 February 2025. Orders to prepare for that hearing were also issued.[57]The Claimant wrote to the Tribunal on 28 December 2024, seeking to vacate the listed costs hearing pending the outcome of his appeal to the EAT.[58]NCP’s representative wrote to the Tribunal on 30 December 2024, stating that the COT3 settlement agreement entered into with NCP brought the Second Claim to an end, and that that agreement precluded the Tribunal from hearing the 9 of 23 Second Claim, and that therefore there could be no reinstatement of the Second Claim.[59]On 4 January 2025 the Claimant applied again for the Respondent’s costs application in this matter to be stayed pending the outcome of an appeal he has lodged with the EAT.[60]I wrote to the parties on 6 January 2025, declining to postpone the costs hearing pending the outcome of the Claimant’s appeal.[61]The Claimant sent another envelope containing multiple sheets of blank A4 paper to the Respondent’s representative, and those were received by it on 8 January 2025.[62]On 9 January 2025, the Claimant sent a document entitled “Response to judgement on reconsideration” to the Tribunal, and again requested that the 14 February hearing be vacated pending the outcome of his appeal to the EAT.[63]On 13 January 2025, EJ Sudra determined that the Second Claim cannot be reinstated as it was dismissed following the Claimant’s withdrawal.[64]The Claimant wrote to the Tribunal on 18 January 2025. That six-page letter objected to EJ Sudra’s position, and repeated that my decision to strike out this Claim was unlawful. Again, the Claimant asked for the costs hearing listed for 14 February 2025 to be vacated, pending decision of the EAT on his appeal.[65]On 13 February 2025, the costs hearing listed for 14 February 2025 was postponed due to lack of judicial resources. It was relisted on 3 March 2025 for 1 May 2025.[66]On 18 April 2025, the Claimant applied to postpone the 1 May 2025 hearing pending the outcome of his appeal to the EAT.[67]That application was refused on 23 April 2025.[68]The Claimant indicated he would struggle to afford the cost of attending the hearing listed for 1 May 2025 in person due to travel costs. The Respondent applied for the hearing to be converted to a hybrid hearing, with the Claimant required to attend in-person due to his technological difficulties in previous hearings, but with the Respondent able to attend remotely to save costs due to the fact it has experienced no difficulties attending remotely before.[69]The Tribunal wrote to the parties on 30 April 2025 confirming that the hearing would proceed as an in-person hearing.[70]The Claimant sent numerous emails following that saying that he would not be attending due to the travel costs.[71]The Tribunal wrote a second letter to the parties permitted the Respondent to attend by CVP but requiring the Claimant to attend in-person.[72]The Claimant wrote back on 30 April 2025 to say he would not be attending. 10 of 23
Law
[73]Unlike in the civil courts, costs do not ‘follow the event’ in the Employment Tribunal, and an award of costs remains the exception rather than the rule (Yerrakalva v Barnsley Metropolitan Borough Council [2012] ICR 420). This does not mean, however, that in order for a costs application to succeed the facts of the case have to be exceptional – all that is needed is for the relevant test to be satisfied (Power v Panasonic (UK) Ltd UKEAT/0439/04).[74]The Tribunal’s power to order costs is set out in Rule 74 of the ET Rules: “(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. (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.[75]Such an application may be made “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” (Rule 75(1)).[76]As described in the case of Daly v Newcastle Upon Tune Hospitals NHS Foundation Trust EAT/0107/18, there are three stages to a Tribunal considering a costs application: a) Does it have jurisdiction to award costs? b) If the Tribunal does have discretion to award costs, should it do so? c) If the answer to the previous question is ‘yes’, what is the appropriate amount? (i) Does the Tribunal have jurisdiction to award costs?[77]The burden of establishing that the tribunal has jurisdiction to make an award of costs sits with the applicant (Haydar v Pennine Acute NHS Trust EAT/0141/17). 11 of 23[78]The Tribunal may not make an award of costs unless the paying party “has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order)” (Rule 75(2)). No reasonable prospect of success[79]Whether there was no reasonable prospect of the claimant’s claim succeeding is assessed on the basis of the information that was known or reasonably available at the time the claim was brought, or the other time at which the party applying for costs says the other party should have acted so as to withdraw the claim or response (Radia v Jefferies International Ltd EAT/0007/18).[80]The tribunal should consider: a) Whether, objectively, when the claim was presented, did it have no reasonable prospect of success, or did that become the case at a later stage when more evidence was available. b) At the stage that the claim had no reasonable prospect of success, did the relevant party know that was the case; and c) If the relevant party did not know that the claim had no reasonable prospect of success, should they have known? This assessment is likely to be more rigorous where the party is legally represented. (Opalkova v Acquire Care Ltd EA-2020-000345-RN). Acted vexatiously.[81]As Lord Bingham put it in Attorney General v Barker [2000] 1 FLR 759, “the hallmark of a vexatious proceeding is… that it has little or no basis in law… that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”.[82]The concept of vexatiousness “implies the doing of something over and above that which is necessary for the conduct of the litigation and suggests the existence of some spite or desire to harass the other side to the litigation, or the existence of some other improper motive” (Cartiers Superfoods Ltd v Laws [1978] IRLR 315). Acted unreasonably.[83]The word “unreasonable” has its ordinary English meaning and is not to be interpreted as if it means something similar to vexatious (Dyer v Secretary of State for Employment [1983] 10 WLUK 154). 12 of 23[84]Where the alleged unreasonable conduct is the bringing, or maintaining, of a claim, the same three questions identified in Opalkova as being relevant to a “no reasonable prospects of success” ground apply.[85]A finding by a tribunal that a party has lied does not automatically mean that party conducted the proceedings unreasonably. The whole circumstances of the case should be considered, including the procedural history (such as unsuccessful applications delaying the conclusion of the case) and the extent to which the lie made a material impact on the case (i.e., the matters about which the party lied may, or may not, have been material to the reasons the complaints did or did not succeed) (Kapoor v The Governing Body of Barnhill Community High School UKEAT/0352/13).[86]“A lie on its own will not necessarily be sufficient to find an award of costs. It will always be necessary for the tribunal to examine the context and to look at the nature, gravity and effect of the lie in determining the unreasonableness of the alleged conduct” (Arrowsmith v Nottingham Trent University [2012] ICR 159).[87]The relevance of the lie to the question of unreasonable conduct will depend on whether the case advanced by that party was materially dependent on them advancing the lie (Arrowsmith [2011]). (ii) Should the Tribunal exercise its discretion to make an award for costs?[88]There is no obligation on a Tribunal to make a costs award when the jurisdiction to do so is engaged (save in the circumstances described in Rule 74(4), which do not apply here) – it remains a matter of discretion as to whether to do so – but it is obliged to consider whether to do so.[89]The principle of relevance means that the Tribunal must have regard to the nature, gravity and effect of the unreasonable conduct (or other matter which gives rise to the costs jurisdiction) when considering whether to exercise the discretion to make an award of costs (McPherson v BNP Paribas [2004] EWCA Civ 569). The purpose of an award of costs is to compensate, not to punish.[90]The nature of the conduct of the party in question involves considering, at the stage that it took place: a) Whether the relevant party knew that it was unreasonable, vexatious, had no reasonable prospect of success (etc. – did they appreciate the matter that forms the jurisdictional basis for the costs award); and b) If not, whether they should have known. (Opalkova).[91]A litigant in person should be judged less harshly than one who is professionally represented (AQ Ltd v Holden [2012] IRLR 638). The Tribunal may wish to take account of any imbalance in legal representation between the parties (Gee v Shell UK Ltd [2002] EWCA Civ 1479). 13 of 23[92]As regards “effect”, as per Yerrakalva, any causal link between the jurisdictional basis for the award of costs and the costs incurred by the applicant is a relevant, though not a constricting factor, to considering whether a costs award should be made.[93]While individual considerations are important (such as, for example, whether a party was dishonest), it is also vital to look at the whole picture, and not to lose sight of the totality of the circumstances (Yerrakalva). This will include consideration of the conduct of the applicant, and the likely effect of the applicant’s conduct on the costs incurred. Costs warnings – or their absence[94]One aspect of the applicant’s conduct that may be relevant is whether they warned the paying party of the risk of a costs award, and if so, how that was communicated: for example, if it was done in a threatening manner, if it explained the weakness of the other side’s position in a straightforward manner case, if it quantified the costs it would or may seek (Rogers v Dorothy Barley School UKEAT/0013/12).[95]There is no general principle that there should be a costs warning letter in advance of a costs application (Vaughan v London Borough of Lewisham UKEAT/0533/12), but a failure to engage with arguments in the costs warning letter can be a factor to weigh in the balance as to whether an award of costs should be made (Peat and others v Birmingham City Council UKEAT/0503/11). The costs warning letter in that case had enhanced the prospects of an award of costs being made. Ability to pay[96]The tribunal may also have regard to the paying party’s ability to pay (Rule 82 of the ET Rules) (as Mr Recorder Luba QC put it in Mirike v Wilson & Co Solicitors UKEAT/0025/11, the discretion to take account of the paying party’s means or not is a “discretion within a discretion”).[97]Where the tribunal is asked to take this into account, it should state both whether it has done so, and if it has, how that has been done (Jilley v Birmingham and Solihull Mental Health NHS Trust [2007] 11 WLUK 517). The EAT in Jilley also acknowledged that: “there may be cases where for good reason ability to pay should not be taken into account: for example, if the paying party has not attended or has given unsatisfactory evidence about means”.[98]“In a case where the primary source of evidence about means to pay would be given by a party in person, their non-attendance may be very or highly relevant to the exercise of [the discretion to take account of their means or not]. It is likewise not capable of dispute that unreasonableness of the paying party’s conduct may weigh in the exercise of the discretion on whether to have regard to their means or ability to pay. Where, as here, the non-attendance by the party is 14 of 23 treated by the Employment Tribunal as another instance of unreasonable behaviour, it cannot be irrelevant to the exercise of the discretion whether to have regard to the means of the non-attending party.” (Mirike).[99]The weight to be given to a relevant consideration is a matter for the tribunal, unless it amounts to an error of law (Mirike). (iii) What is the appropriate value for the costs order?[100]Cost awards are compensatory, not punitive (e.g., Lodwick v Southwark London Borough Council [2004] ICR 884).[101]Any award of costs should be limited to costs reasonably and necessarily incurred, but it is not necessary to establish a precise causal link between the costs incurred and the basis for the jurisdiction (e.g., unreasonable conduct) (Yerrakalva). However, that does not mean that where, for example, there has been some unreasonable conduct, it is necessarily appropriate to make an award for the other party’s costs for the whole of the proceedings (McPherson).[102]The tribunal may take into account the paying party’s ability to pay when assessing the value of the award, but it is not obliged to do so. The tribunal should say if it has, and if so, how (Jilley).[103]The tribunal is not required to confine the sum of an award of costs to an amount that the paying party can pay (Arrowsmith [2011] EWCA Civ 797).[104]“The vital point in exercising the discretion to order costs is to look at the whole picture of what has happened” (Yerrakalva).[105]Pursuant to Rule 76(1), the Tribunal may order the paying party to pay an amount of costs not exceeding £20,000 by way of unassessed costs. Detailed assessment is required for any Costs Order exceeding £20,000. Analysis of the application here (i) Does the Tribunal have jurisdiction to award costs?[106]The Respondent’s costs application was made within 28 days of the Tribunal’s judgment of 12 September 2024, and so within the time frame stipulated by Rule 75(1).[107]The Claimant has had a reasonable opportunity to make representations (satisfying Rule 75(2)), both in writing and at a hearing, albeit that he chose not to attend the hearing by telephone.[108]The Tribunal has already concluded that, as at the date of its judgment on 12 September 2024: a) The Claimant had no reasonable prospect of succeeding with his claim against the Respondent; and 15 of 23 b) The manner in which the Claimant had conducted these proceedings had been scandalous and vexatious. These were the bases found for striking out the Claim.[109]It is evident that the Tribunal has jurisdiction to make an award of costs against the Claimant, for the following reasons: a) While the Tribunal has already concluded that the Claimant had no reasonable prospect of success in the Claim as at 12 September 2024, that was the state of affairs when he presented the Claim on 16 January 2023. The Claimant knew he had TUPE-transferred into NCP’s employment – he had corresponded with NCP about an occupational health assessment and a disciplinary process and had been dismissed by NCP four days before the Claim Form commencing this Claim was presented. He had also been paid by NCP for the months of December 2023 and January 2024 (which the Tribunal can see from NCP’s response to the Claimant’s claim against it) – this is what the Claimant referred to as “free money” in his email of 2 October 2023 to the Respondent. Addressing the three questions identified as relevant in Opalkova:(i) Objectively, when did the Claim have no reasonable prospect of success? The Claim against the Respondent never had any reasonable prospect of success, as any relevant liabilities would have transferred to NCP on 1 December 2022.(ii) Did the Claimant appreciate that fact when he presented the Claim? The Claimant did not present the Second Claim (against NCP) until March 2024, but he had been informed about the operation of TUPE in October 2022, and knew he had become employed by NCP as he corresponded with them about occupational health assessments and a disciplinary process, and ultimately, his dismissal. The Employment Tribunal considers it probable that he appreciated that any employment claims he believed he had against the Respondent transferred by operation of law to NCP on 1 December 2022, not least because his Claim Form referred to the Respondent’s non-compliance with TUPE-related information and consultation obligations. Even if he did not know that accrued liabilities transferred with his employment to NCP, the Respondent’s letter of 29 July 2023 – sent before the Respondent had presented its Response to the Claim, and therefore before most of the Respondent’s costs had been incurred – made that plain. On balance, the Tribunal considers that if the Claimant was able to cite TUPE on his Claim Form in the context of complaining that the Respondent had not complied with information and consultation obligations derived from it, he would have known that any employment-related liabilities (of the kind maintained in this 16 of 23 Claim) had transferred to NCP. Even if the Tribunal is wrong about that, he would have become aware of that before the vast majority of the Respondent’s costs resisting this Claim were incurred.(iii) If the Claimant did not know that the Claim had no reasonable prospect of success when it was presented on 16 January 2023, should he have known? The Tribunal finds that he should have done. The Claimant referred to the Respondent not complying with TUPE in relation to an information and consultation process and his alleged objection to the transfer – he should have understood that his complaints (as clarified before EJ Emery, of wrongful dismissal, disability discrimination, victimisation, unpaid holiday pay and unauthorised deduction from wages1) should properly have been brought against NCP only. The Tribunal’s power to make a costs award against him is therefore engaged pursuant to Rule 74(2)(b). b) In relation to the second basis upon which the Respondent says the Tribunal has the jurisdiction to award costs, that the Claimant’s behaviour in bringing the Claim was scandalous, again, the Tribunal finds it has jurisdiction. For the same reasons as set out above in relation to “no reasonable prospect of success”, the Tribunal finds that the Claimant’s behaviour in presenting the Claim against the Respondent was done at a time when he knew he had no claim at law against the Respondent. Furthermore, the Claimant intentionally misled the Tribunal and the Respondent in the terms of the Claim, stating as he did that he did not TUPE-transfer to NCP, which was a position maintained throughout the life of the case – including when it became evident that he had presented the opposite case against NCP. That is the definition of scandalous behaviour, and additionally is perfectly encapsulated by the description of “a vexatious proceeding” provided by Lord Bingham in Attorney General v Baker (cited above). The Claimant has very clearly brought a case which has little or no basis in law, abusing the tribunal process, for the improper motive of seeking an award or settlement from the Respondent when he had no right to one. Again, the Tribunal finds that its power to makes an award of costs the Claimant is engaged pursuant to Rule 74(2)(a). c) The Respondent also avers that by his conduct of the proceedings, the Claimant has acted unreasonably, and it gives numerous examples of 1 In the hearing before EJ Emery the Claimant said that there had been an information and consultation process carried out by the Respondent, so that matter was not pursued by him. 17 of 23 this. The clearest example of unreasonable behaviour, the Tribunal finds, is the Claimant’s evident intention to hide his relationship with NCP from both the Respondent and the Tribunal hearing this Claim. If the Claimant was confused about whether to bring his complaints against the Respondent or against NCP, he could have named both in his Claim Form. A litigant-in-person may reasonably not appreciate that this is what should have been done, but the Claimant’s position was significantly different: he actively stated in his Claim Form and maintained throughout the progression of the Claim that he never TUPE-transferred to NCP, and yet in his Claim Form in the Second Claim he stated that “On 01st December 2022 I was transferred (TUP) [handwritten note above “(TUPE)”] to National Carpark Limited”. It could have been that his understanding of the position at law changed over the course of the progression of the Claim, but the Tribunal finds that that was not in fact the case. The Claimant took active steps in the COT3 settlement agreement with NCP to prevent NCP disclosing to the Respondent details of the Claimant’s employment with NCP and details of his claim against NCP and its settlement. This was dishonest, scandalous and was most certainly sufficiently unreasonable to engage the Tribunal’s jurisdiction to make an award of costs pursuant to Rule 74(2)(a). Dyer shows that “unreasonable” is to be given its ordinary English meaning – the Claimant’s conduct was certainly unreasonable. While the EAT’s decision in Kapoor warns that the Tribunal is not to rely on the Claimant’s having actively misled the Tribunal and the Respondent as automatically meaning that he has conducted the proceedings unreasonably, it is evident that the nature, gravity and effect of his dishonesty is very serious (Arrowsmith). The active concealment of the Claimant’s relationship with NCP affected the core of the Claimant’s Claim against the Respondent, given the application of TUPE meant that the Respondent would not be liable for the complaints the Claimant was pursuing. The Tribunal finds that the Claimant knowingly misrepresented his relationship with NCP from the outset, when in his Claim Form against the Respondent he said that he never TUPE-transferred to NCP, despite having days before been the subject of a disciplinary procedure as part of his employment with NCP that resulted in his dismissal. The Claimant knew he had been employed by NCP and took steps to conceal that fact. That lie went to a critical part of his case against the Respondent and had the effect of enabling him to sustain this Claim until it was discovered on the day of the strike-out hearing nearly 20 months after the date the Claim was presented. (ii) Should the Tribunal exercise its discretion to make an award for costs?[110]There is no obligation on the Tribunal to make a costs award here, even though the jurisdiction to do so is engaged, however it is clear that in this case it is 18 of 23 appropriate to exercise that discretion. The power to award costs is designed to compensate, not to punish, but the Tribunal considers that: a) The Claim had no reasonable prospect of success from the outset. b) The Claimant knew that at the outset; and c) The Claimant took active steps to mislead the Tribunal and the Respondent about his relationship with NCP, and to inhibit NCP from responding to enquiries made by the Respondent of it. The Respondent therefore was embroiled in spending time and money resisting a claim that should never have been brought against it. Compensating the Respondent is appropriate in those circumstances.[111]The nature of the Claimant’s conduct was deceit, the gravity of it was significant, showing contempt for the judicial process by concealing, for quite some time, the reality of events from the Tribunal and the Respondent. The effect was to cause the Respondent to incur all the costs it has done to date.[112]The significance of each of those assessments of the Claimant’s conduct (nature, gravity and effect) is exacerbated by the fact that the Claimant continued to maintain the lie that he never worked for NCP when the Respondent presented that in its defence, and even when the Claim was struck-out by the Tribunal (when he has applied for reconsideration of that decision, asserting that the Respondent dismissed him on 24 November 2022, ahead of the service provision change and what would otherwise have been the transfer of his employment pursuant to TUPE). This is a different narrative to that given in the Second Claim against NCP, when he told the Tribunal that he did TUPE-transfer to NCP.[113]It is also relevant to note that: a) NCP said, in its Response to the Second Claim, that the Claimant did TUPE-transfer into its employment and that it dismissed him in January 2023. This was pertinent information to the Claim here, which the Claimant sought to suppress by the terms of the COT3 he entered into with NCP - a consideration which pushes in favour of exercising the discretion to award costs; b) While causal effect is not a necessary pre-condition to an award of costs (Yerrakalva), it is a relevant consideration. The Claimant’s vexatious, scandalous and unreasonable conduct caused the entirety of the Respondent’s costs to be incurred, as the Claim should never have been presented – a consideration which pushes in favour of exercising the discretion. c) The Respondent warned the Claimant of the risk of a costs award on two occasions in open correspondence (and further occasions in correspondence marked as “without prejudice save as to costs”), and initially did so in a letter which explained the Respondent’s view of the 19 of 23 relevance of TUPE to whether the Respondent was responsible for any liability for the complaints the Claimant was making – a consideration which pushes in favour of exercising the discretion; d) The Claimant has taken other steps to mislead the Tribunal, such as stating, in his representations of 14 October 2024 following the Respondent’s costs application, that he was not claiming any loss of earnings in the Claim, when he in fact referred to £35,000 lost earnings in his 8 May 2024 email purporting to be his schedule of loss, and referred to £33,000 lost earnings (as well as £12,000 of benefits received) in his schedule of loss of 14 June 2024 – a consideration which pushes in favour of exercising the discretion; and e) The Claimant is a litigant in person, who should be judged less harshly than one who is professionally represented (Holden) – a consideration which pushes against exercising the discretion to award costs.[114]The Claimant in his written submissions has said that he is impecunious. The Respondent, in submissions at the hearing, has questioned the truthfulness of the Claimant’s position in a number of ways, including: a) Noting that the Claimant has said that he has no car, but the single bank statement the Claimant has disclosed (from December 2024) shows payments for petrol and to “Mr Clutch Crawley”, which would suggest that, at least at the time of those transactions, the Claimant had a car. b) Observing that there are numerous outgoings to what appear to be restaurants and takeaways, and what appears to be a transaction to purchase a flight; and c) Averring that, were it not for a large cash withdrawal in the middle of the month for a sum of around £1,500, the Claimant’s bank balance would have improved in the month in question and speculating that the Claimant may have other bank accounts, given the making of a single cash withdrawal of that amount is unusual).[115]The Respondent has also posited that the Tribunal should not take account of the Claimant’s ability to pay, noting that it is a matter for the Tribunal’s discretion whether to do so (as set out in Rule 82), and pointing to the analogies between the facts of this case and the situation in Mirike.[116]The Tribunal has decided not to take account of the Claimant’s ability to pay, not least because the picture presented by his documentary evidence is not clear. He has, by way of example, included a letter addressed to a different person, Mrs Wenner Munoz, from 3 January 2025, stating that that lady owes £907.19 in rent, and that she has been given the opportunity, via a Suspended Possession Order, to avoid being evicted by paying her weekly rent plus £35 every month. Mrs Munoz lives at the same address as the address of record for the Claimant, and both are jointly addressed at the same postal address in a letter about universal 20 of 23 credit for November/December 2024. This suggests that she is the Claimant’s wife and that it is his home (which may be rented in her name) that is at risk of re-possession for non-payment of rent, but the Tribunal does not know this and has lost the ability to ask the Claimant about it by reason of his non-attendance.[117]The Respondent has also pointed to inconsistencies in the evidence relating to the Claimant’s new employment, as the sums apparently paid to him by his employer, Gatwick Minbuses Ltd, in September, October and November 2024 (payslips for which were provided) were all paid in the single month’s bank statement from December 2024 the Claimant disclosed.[118]His non-attendance at this hearing meant that the Respondent and the Tribunal lost the ability to question him about the apparent inconsistencies in the financial position he has described with the documentary evidence shown. While the Claimant has said (for example, in his email to the Respondent copied to the Respondent on 4 October 2024) that: a) He has no income. b) He has no assets. c) He and his wife receive benefits of around £1,000 a month in aggregate, and that sum covers rent and utility bills; and d) He is in receipt of support from a food bank, the letter included in the Bundle by the Claimant from Gatwick Minibuses Ltd states that the Claimant commenced work for that organisation as a part-time driver carrying out home to school contracts in term-time only from September 2024, and earned £690 in September 2024 and £517.50 in October 2024 (and further sums after that). At the very least the Claimant’s statement on 4 October 2024 that he had no income besides benefit payments is contradicted by this letter.[119]There is also a loan account statement, which indicates that he has a nearly £17,000 loan, and an email from a food bank to the Claimant in November 2024.[120]The picture painted by the documentary evidence and statements he has provided is not clear.[121]As the Jilley case made plain, non-attendance may be a good reason for a person’s ability to pay to not be taken into account. This was reiterated in the Mirike case, the latter of which also emphasised that the “unreasonableness of the paying party’s conduct may weigh in the exercise of the discretion on whether to have regard to their means or ability to pay”. Here, the Claimant has been dishonest in his engagement with the Tribunal. There is no reason to think he would be otherwise about his ability to pay. It is inappropriate, in those circumstances, to take account of his ability to pay, and so the Tribunal has not done so. 21 of 23[122]Taking all the cited factors that have been taken into consideration into account, and not giving consideration to the Claimant’s means, the Tribunal concludes that it is appropriate to exercise the discretion to make an award for costs. (iii) What is the appropriate value for the costs order?[123]An award of costs should compensate, and not exceed the losses the Respondent has incurred. Here, the evidence presented to the Tribunal is that the Respondent has incurred costs resisting the Claim to date of £14,241, and in light of the Employment Judge’s own experience in practice, those costs do not seem excessive for a matter that has gone on for more than two years and has involved the procedural steps it has to get to the truth of what happened – that the Claimant TUPE-transferred into NCP’s employment, which then inherited any employment-related liabilities of the kind the Claimant was complaining of.[124]The Tribunal considers that the entirety of the costs the Respondent has incurred are costs that it would not have incurred had the Claimant not knowingly falsely stated that he did not TUPE-transfer into NCP’s employment.[125]For the same reasons as set out above, the Tribunal declines to take account of the Claimant’s ability to pay when setting the value of the costs award.[126]While costs awards are the exception in the Employment Tribunal, the Claimant’s behaviour here has been exceptional, and it is abundantly clear that the entirety of the Respondent’s costs were incurred because of it. The whole picture should be examined, and the Claimant’s initial and continued deceit, his obfuscation when asked about his employment with NCP by the Respondent, his embroiling of NCP into also hiding that reality from the Respondent’s eyes, the fact he was paid compensation under COT3 with NCP in relation to the Second Claim while continuing to pursue the Respondent, and his continued attempts to avoid and delay hearings, means that a compensatory approach to costs would rightly see the Claimant Ordered to pay the whole of the Respondent’s costs.
Conclusions
[127]For all of the above reasons, the Respondent’s application succeeds, and the Claimant is Ordered to pay to the Respondent the sum of £14,241 by way of costs pursuant to Rule 76(1)(a).