Employment Judge A FrazerNot represented for claimantMs Gardiner (instructed by Counsel) for respondentIn person for claimantMr Dhorajiwala (instructed by Counsel) for respondentDate 6 December 2024
JUDGMENT
[1]The Claimant’s claim for a failure to inform and consult is dismissed upon withdrawal under Rule 52 of the Employment Tribunal’s Rules of Procedure 2013. _______________________________ Employment Judge A Frazer Dated: 17th April 2023 ………………………………………………. 2303549/ 2021[2]Case No: 2303549/2021 EMPLOYMENT TRIBUNALS Claimant: Ms D Prince Respondent: CNLR Horizons Limited Heard at: London South in person. On: 2707/23. Before: Employment Judge Mclaren Representation Claimant: In Person Respondent: Mr Dhorajiwala, Counsel[4]The decision of the employment tribunal is as follows: – The claimant is disabled within the meaning of the Equality Act 2010 by reason of both dyslexia and migraines F Mclaren
REASONS
[1]The claimant’s claims were dismissed under Tribunal Rule 47 for nonattendancepursuant to a separate judgment of the tribunal dated 6 December 2024.[2]The respondent made an application for a costs order under Tribunal Rule76(1)(a) or (c), or in the alternative to (c) under 76(2) and for a witness expenses order under Rule 76(5).[3]Tribunal Rule 76 provides so far as relevant: Case Number 2303549/2021 76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or.. (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins.(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party..... (5) A Tribunal may make a costs order of the kind described in rule 75(1)(c) on the application of a party or the witness in question, or on its own initiative, where a witness has attended or has been ordered to attend to give oral evidence at a hearing.[4]For Rule 76(1)(C) and 76(2) the respondent relied upon the that the claimant hadachieved a de facto adjournment at the start of the hearing on Monday 2 and Tuesday 3 December 2024.[5]For Rule 76(5) the respondent relied upon the travel and accommodation costs ofphysical attendance at the hearing of two of its four witnesses of fact.
Relevant Law
[6]The respondent made the following submissions, which we accepted.[7]The tribunal must adopt a three-stage approach to an application under Rule76(1) (a) or (c):[8]Stage 1: The tribunal must make findings of fact about the claimant’s conduct anddetermine if that conduct meets the statutory threshold for making a costs award; If it does[9]Stage 2: the tribunal must decide whether to exercise its discretion to make acosts award in all the circumstances; and if it does:[10]Stage 3: the tribunal must decide on the amount.[11]A Litigant acting in person should not be judged by the same standards as arepresented party and a tribunal should take this into account, but that does not mean that Litigants in person are immune from costs orders.[12]When considering Rule 76(1)(a) the individual labels (vexatious/abusive/disruptive/unreasonable) do not matter. The question is whether the party’s behaviour falls within the threshold. The respondent did not assert that the claimant’s behaviour was vexatious. It relied upon such behaviour being disruptive. Case Number 2303549/2021[13]When considering the exercise of the discretion:-[14]the purpose is to compensate not to punish.[15]Rule 84 provides that: ”In deciding whether to make a costs, preparation time, orwasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay”.[16]Having regard to means to pay is permissive not mandatory: Jilley v Birmingham and Solihull Mental Health NHS Trust UKEAT/0584/06 and UKEAT/0155/07. One reason why a tribunal may decide not to take account of a paying party’s means is a failure by that party to provide sufficient or credible evidence of means. Nonattendance of a party may also be a relevant consideration in whether or not to consider means at Stage 2 and Stage 3: Mirikwe v Wilson & Co solicitors UKEAT/0025/11/RN.[17]Even if means are taken into account, an award of costs is not required in anyevent to be limited to an amount that a party can pay outright from savings or current earnings. The tribunal should consider also what the paying party could afford to pay in the future.[18]We would add to these submissions that the starting point is that an award ofcosts should be the exception rather than the rule: Gee v Shell Ltd. [2003] IRLR 82 CA. The receiving party does not need to prove a causative link between the costs incurred by the receiving party and the unreasonable conduct: McPherson v BNP Paribas [2004] ICR 1398 CA; Kapoor v Governing Body of Barnhill Community School UKEAT/0352/13 Submissions[19]The respondent submitted that:[20]The claimant’s conduct was not attributable to difficulties arising from her statusas a litigant in person.[21]The tribunal had considered that the claimant had likely not prepared to attendthe first full merits hearing in November 2023 and could infer from the pattern of her communications that that she did not intend to attend this hearing.[22]The claimant did not provide the further clarification and evidence in support ofher implied application to amend on Day 1, and Day 2.[23]She failed pro-actively to check communications from the tribunal by email, directphone or voice mails. She was given every opportunity by the tribunal to respond, even having the tribunal’s concerns set out clearly for her to address. She did not respond to any of these after Tuesday evening. She did not respond to the tribunal’s proactive attempts to manage the case. Failure to respond at all was productive of delay to the hearing over at least Wednesday to Friday, when but for her failure to respond the hearing may have been able to be effective.[24]The claimant’s conduct as a whole was disruptive or unreasonable. Case Number 2303549/2021[25]For these reasons the tribunal should find the Stage one threshold has been metand should exercise its discretion in favour of making a costs order.[26]The tribunal had no information about the claimant’s means. There was noSchedule of Loss (despite such Schedule having been ordered). The claimant was put on notice of the risk of a costs order by the tribunal in its email of Wednesday 4 December 2024 (and had been warned of this possibility also in an email from the respondent in October 2023 – although we placed no weight on this warning). The respondent wrote to her on Thursday morning with a warning of the forthcoming application and sent her a form to set out her income and means. The claimant made no contact with the tribunal of the respondent.[27]In any event for these reasons the tribunal should disregard the claimant’smeans in considering whether to exercise the costs discretion.[28]As regards amount, the respondent submitted that the claimant should pay:-[29]Counsel’s costs for Wednesday to Friday £4,500[30]Travel and Expenses costs of counsel £667.98[31]Solicitor's time costs £475.20 Legal Costs : £5643.18[32]Witness expenses £266.96 Total claimed £5910.14
Conclusions
[33]The tribunal was satisfied that for the reasons set out above the threshold formaking a costs order has been met. Even making allowances for the claimant’s acting in person, she would have been aware from previous instances (in July and November 2023) when hearings were adjourned for her nonattendance that evidence and a full explanation would be required. The claimant did not provide any or any adequate explanation for her non-attendance on Wednesday to Friday. Her unexplained failure to respond in any way to the tribunal’s attempts to facilitate her participation and to contact her amounted to unreasonable conduct. She appeared not to have been prepared to attend to give evidence. She failed to attend or to communicate even to discuss future case management. As a result of that conduct the hearing was rendered ineffective and the respondent put to expense.[34]Having regard to all the circumstances the tribunal considered that the claimant’sconduct and its consequences were such that it was appropriate to make an order today that the clamant should pay an amount of the respondent’s costs. The reasons included(i) the claimant’s continuing failure to provide information or explanations sought by the tribunal to explain any absence(ii) her repeated and unexplained failure to engage in a meaningful way with the tribunal process(iii) her failure to respond at all to costs warnings.[35]There was some material in the papers to suggest that the claimant may be oflimited means. Her income with the respondent was £1300/month for a threeCase Number 2303549/2021 day week. She was declared bankrupt in 2019, and she described herself in her email as acting as a live-in carer for her mother. In unsworn statements she mentioned that she was no longer working as a telephone EPA adviser, but she described herself as self-employed. However, she had failed to file a Schedule of Loss as previously directed and had not responded to the costs warnings.[36]The Tribunal noted that there had been little time to provide detail of her incomeand assets after the costs warnings on Thursday, and took account of the fact that the claimant had a dyslexia disability which might make organisation more challenging and time consuming for her, and that it could adjourn the hearing and direct the claimant to provide evidence of means and submissions. Nevertheless the tribunal considered that it should proceed to assess costs at this hearing without regard to her means, because it had no information about means and the claimant had not responded to the costs warnings at all.[37]As regards the amount of costs to be awarded the Tribunal took into accountthat:-[38]The Tribunal exercised discretion in the claimant’s favour to adjourn for Mondayand Tuesday;[39]The respondent’s application to oppose that and any further adjournment and todismiss the claims took approximately half a day, the tribunal took a half-day to consider and a morning to deliver its judgment orally;[40]The respondent would have made that application anyway, and so no time waslost in that sense. Accordingly the failures by the claimant to engage with the tribunal process properly led to the loss of a day of hearing time. The appropriate award of costs should, as a matter of discretion, be informed by that
consideration.
[41]Counsel acted without solicitor support at the tribunal, and therefore solicitor’scosts of 1.5 hours of liaison, particularly in light of the evolving picture arising from the unpredictable pattern of the claimant’s contacts is reasonable. We rejected costs of counsel’s accommodation to the extent they arose because they were non-refundable. Witness expenses were wasted and therefore were allowed.[42]The claimant must pay the respondent’s costs in the amount of £2572,16. madeup of[43]Counsel’s costs £1,500[44]Solicitors’ cost : £475.20[45]Counsel’s Travel and Accommodation : £330[46]Witness expenses £266.96