S Gomes v Guy’s and St Thomas’ NHS Foundation Trust: 2303791/2022

EMPLOYMENT TRIBUNALS

Case No 2303791/2022

Between

Sheilla GomesClaimant

Guy’s and St Thomas’ NHS Foundation TrustRespondent

Before

Judge M Aspinall

Date 16 August 2024

REASONS

Background

[1]The claimant brought claims of direct race discrimination, harassment related to race, victimization and other matters against her former employer, the respondent NHS Trust. The respondent fully denied the allegations. A preliminary hearing was held in August 2023 followed by a case management discussion in November 2023 which defined the issues to be determined.

[2]The matter ultimately proceeded to a full merits hearing on 5th, 6th, 7th, 15th and 16th August 2024. The claims consisted of unlawful discrimination and victimization contrary to the Equality Act 2010. The claimant withdrew her constructive dismissal claim at an earlier stage of proceedings. During the hearing she also withdrew claims relating to unpaid holiday pay and notice pay.

[3]The Tribunal heard evidence from the claimant, 7 witnesses for the respondent, and considered documentary evidence and submissions. At the conclusion of the hearing, the Tribunal dismissed all the claimant's remaining allegations of race discrimination, harassment and victimization on the merits. The Tribunal would also have dismissed one of the race discrimination allegations for want of jurisdiction, as it was brought out of time, had we not already found that it had no substantive merit.

[4]The respondent had earlier sent a warning letter regarding potential liability for costs if the weak claims were continued. Following dismissal of the claims, the respondent made an Ms Sheilla Gomes -v- Guy’s and St Thomas’ NHS Foundation Trust [URN 2303791-2022] 18-Aug-2024 Order for Costs Page 1 of 4 application for a portion of their costs incurred defending the proceedings. The Tribunal therefore had to consider the costs application after dismissing the substantive claims. Application for costs

[5]The respondent argued that the claimant's conduct in pursuing the litigation justified an order for costs. They submitted that the way the proceedings were brought and conducted by the claimant bore hallmarks of being unreasonable.

[6]Several claims lacked merit and were ultimately withdrawn after the respondent prepared its defence. This included the constructive dismissal claim withdrawn before the hearing, plus the holiday pay and notice pay claims abandoned during the hearing itself.

[7]The respondent argued that objectively many of the claimant's allegations appeared very weak based on the available evidence. However, she persisted in advancing them requiring the respondent to mount a defence leading to wasted expenditure.

[8]It was submitted that an objective review of the documentary evidence and witness statements would have demonstrated fundamental flaws undermining the claimant's prospects of success.

[9]The respondent sought a portion of their costs, requesting £8,000 as a reasonable and proportionate contribution. This was well below the total costs actually incurred in defending the proceedings overall. Response for the claimant

[10]In response, it was submitted on behalf of the claimant that she had brought and pursued the claims in good faith. The claims were believed to have reasonable prospects based on her version of events.

[11]It was argued the claimant was entitled to bring the proceedings to have the factual disputes determined by the Tribunal. Simply because the Tribunal ultimately disagreed with the claimant's account did not render the claims unreasonable.

[12]The response stated that the allegations against Mr. Chibogwu had potential merit as harassment, even if the Tribunal reached a different conclusion. The claimant genuinely considered his conduct to create an offensive environment.

[13]It was also highlighted that the employer's own grievance appeal outcome partially upheld some of the issues raised by the claimant. This demonstrated her claims could not be considered obviously unmeritorious from the outset.

[14]Additionally, it was submitted that the claimant did not have a full understanding of employment law and relied upon her representative's advice in formulating and advancing the claims. The manner of bringing the proceedings was therefore not unreasonable in context.

[15]The response requested that these factors be taken into account and that the application for costs be refused. The pursuit of the litigation was said to be reasonable in the circumstances. Evaluating the claimant’s ability to pay

[16]The Tribunal questioned the claimant while she was sworn as a witness regarding her financial means and ability to pay any costs ordered.

[17]The claimant confirmed she did not have regular monthly income, working intermittent bank nursing shifts as her health permitted. Her earnings from bank work varied each month, supplemented by Universal Credit payments. Ms Sheilla Gomes -v- Guy’s and St Thomas’ NHS Foundation Trust [URN 2303791-2022] 18-Aug-2024 Order for Costs Page 2 of 4

[18]Based on figures provided for recent months, the Tribunal estimated the claimant's average total monthly income from work and benefits as approximately £1500.

[19]The claimant gave evidence on her typical monthly outgoings, including £800 rent, £20 phone bill, around £350 on food and £60 on clothes. Her travel costs were estimated at £88 per month.

[20]Other expenses discussed included ongoing loan repayments of £100 per month for a laptop purchase. The Tribunal covered all major categories of expenditure to assess the claimant's disposable income.

[21]The respondent submitted that under the Rules, future earning potential could also be considered regarding a party's ability to pay costs awarded against them. The law on costs

[22]Costs orders are governed by Rules 75-84 of the Employment Tribunal Rules of Procedure 2013 (as amended). Rule 75 defines costs orders and preparation time orders. Costs are fees, charges, disbursements or expenses incurred by the receiving party.

[23]Under Rule 76, the Tribunal may make a costs order where a party or their representative has acted unreasonably in bringing or conducting proceedings, or where any claim or response had no reasonable prospect of success. The Tribunal may also make an order where there has been a breach of an order or practice direction.

[24]Rule 76(4) provides that a costs order may be made where a fee-paying party succeeds on a claim or application. Rule 77 states a party may apply for costs up to 28 days after the final judgment was sent. The paying party must have a reasonable opportunity to respond.

[25]Rule 78 sets out the amount of a costs order. This may specify an amount up to £20,000 or order assessment of the full costs. Where costs relate to a lay representative's fees, the hourly rate is capped at £44 (Rule 79). This is because the rate was £33 in 2013 but increases by £1 every 6 April, so by August 2024 it has reached £44 per hour.

[26]Rule 80 provides for wasted costs orders against representatives for improper, unreasonable or negligent acts causing costs to be incurred unreasonably. This covers conditional fee arrangements (Rule 80(2)).

[27]Under Rule 82, an application for wasted costs may be made up to 28 days after the final judgment. The representative must have a chance to respond. Their client must be informed.

[28]Rule 83 states allowances paid for attendance at the Tribunal may also be ordered to be repaid. Rule 84 confirms ability to pay can be considered in deciding whether to award costs or wasted costs and the amount. Evaluation of the application

[29]Having carefully considered the submissions and evidence presented, the Tribunal decided to make a costs order against the claimant in the amount of £1,000.

[30]The Tribunal found that while the claimant's conduct was not vexatious per se, the overall tenor and continued pursuit of unmeritorious claims was unreasonable in the circumstances. The evidence available to support various allegations was clearly weak and uncorroborated. Yet the claimant persisted in advancing such claims requiring the respondent to mount a defence.

[31]Given this unreasonable conduct in the manner of pursuing claims with limited prospects, the Tribunal deemed it appropriate for the claimant to make a contribution to the respondent's costs, albeit below the full amount sought. Ms Sheilla Gomes -v- Guy’s and St Thomas’ NHS Foundation Trust [URN 2303791-2022] 18-Aug-2024 Order for Costs Page 3 of 4

[32]All of the allegations advanced lacked substantive merit based on the available evidence. Pursuing these required unreasonable expenditure by the respondent.

[33]After considering the claimant's financial means, the Tribunal concluded her limited income and constrained circumstances warranted a costs order below the level sought by the respondent. This reflected her ability to pay as required by the Rules. A wasted costs order against her representative was also deemed apt and is addressed separately. Judge M Aspinall 18th August 2024 Ms Sheilla Gomes -v- Guy’s and St Thomas’ NHS Foundation Trust [URN 2303791-2022] 18-Aug-2024 Order for Costs Page 4 of 4 Reference number 2303791-2022 EMPLOYMENT TRIBUNALS London South Employment Tribunal 5, 6, 7, 15 and 16 August 2024 (video) Claimant: Sheilla Gomes Respondent: Guy’s and St Thomas’ NHS Foundation Trust Before: Judge M Aspinall (sitting as an Employment Judge) Mr J Hutchings Ms C Edwards Appearances: Mr K Richards (non-legally qualified) for the Claimant Mr N Caiden, Counsel for the Respondent Wasted Costs Order Rules 80-82 of The Employment Tribunals Rules of Procedure 2013 (as amended) UPON hearing from the parties on a costs application made by the Respondent; AND UPON becoming aware of misleading statements made by the Claimant’s representative; AND UPON hearing from that representative and the Claimant; IT IS ORDERED that by 13 September 2024, Mr Karl Richards shall pay £600 to the Claimant and £4,400 to the Respondent.

[1]The claimant brought claims of direct race discrimination, harassment, victimization and other matters against her former employer, the respondent NHS Trust, under the Equality Act 2010. The respondent denied the allegations in their entirety.

[2]A preliminary hearing was held in August 2023 followed by a case management discussion in November 2023 which defined the issues to be determined at a final hearing.

[3]The matter ultimately proceeded to a full merits hearing on 5th, 6th, 7th, 15th and 16th August 2024 before an Employment Judge and two lay members.

[4]The claims consisted primarily of unlawful discrimination, victimization and harassment contrary to the Equality Act 2010. During the hearing, the claimant withdrew her claims for unpaid holiday pay and notice pay. She had, earlier, withdrawn a claim for constructive unfair dismissal.

[5]The Tribunal heard live evidence from the claimant along with 7 witnesses called by the respondent. The parties provided documentary evidence and submissions were made by the claimant's representative and the respondent's counsel.

[6]At the conclusion of the hearing the Tribunal dismissed all of the claimant's remaining claims of race discrimination, harassment and victimization on the merits, also noting that Ms Sheilla Gomes -v- Guy’s and St Thomas’ NHS Foundation Trust [URN 2303791-2022] 18-Aug-2024 Wasted Costs Order Page 1 of 5 one of the allegations of race discrimination was also brought out of time

[7]The respondent applied for a portion of their costs incurred defending the proceedings. The Tribunal therefore had to consider the costs application after dismissing the substantive discrimination claims. How did the question of wasted costs arise?

[8]During the costs proceedings, the Tribunal questioned the claimant regarding her financial arrangement with Mr. Richards and the fees she had paid him. The claimant appeared surprised when his representation costs of £4,800 were raised.

[9]This led the Tribunal to explore Mr. Richards' role further.

[10]At the start of the substantive hearing Mr. Richards stated he was not a lawyer and had “…just volunteered to assist the claimant…” (our emphasis) out of good will; having been introduced to the claimant by a friend. The Tribunal understood him to be a lay person volunteering to help a party before them.

[11]In a preliminary discussion, Mr. Richards confirmed to the Judge that he had a law degree and completed the LPC but did not qualify. The Tribunal treated him with leniency on the basis he was not a legal professional but rather a friend volunteering to aid the claimant.

[12]However, during the costs proceedings, it transpired there was a conditional fee agreement by which the claimant paid Mr. Richards an initial deposit (of £600), with an expectation of further payment depending on the outcome (£4,800 or 20% of any award made to Ms Gomes, whichever had been higher).

[13]Had the Tribunal known he was acting for profit, proceedings would have been managed differently with Mr. Richards held to the standards expected of a paid representative.

[14]The Tribunal members recalled that early in the hearing, Mr. Richards had denied being a lawyer and specifically said he had volunteered to help the claimant. The Tribunal considered this representation misled them.

[15]When the claimant gave evidence on the withdrawn claims, she stated Mr. Richards had told her which claims to bring and advised her on the litigation.

[16]In light of the claimant's reliance on Mr. Richards regarding the manner in which claims were advanced, the Tribunal decided to examine whether his conduct warranted a wasted costs order.

[17]The Judge indicated that misleading the Tribunal about his role and encouraging weak claims could potentially justify a wasted costs order against Mr. Richards. The Tribunal therefore explored this prospect. The law

[18]Rules 80-82 of The Employment Tribunals Rules of Procedure 2013 govern when a Tribunal may make a wasted costs order against a party's representative.

[19]Rule 80(1) provides that a wasted costs order may be made where the receiving party has incurred costs because of any improper, unreasonable or negligent act by the representative (80(1)(a)), or which the Tribunal considers unreasonable for the party to pay in light of such act occurring after the costs were incurred (80(1)(b)).

[20]Under Rule 80(2), a "representative" includes a party's legal or other representative, but excludes those not acting for profit in the proceedings. Those acting on contingency or conditional fee arrangements are considered to be acting for profit. Ms Sheilla Gomes -v- Guy’s and St Thomas’ NHS Foundation Trust [URN 2303791-2022] 18-Aug-2024 Wasted Costs Order Page 2 of 5

[21]Rule 80(3) states that a wasted costs order can be made for or against legally represented and unrepresented parties, as well as in favour of the representative's own client. However, it cannot be made against a representative acting as the party's employee.

[22]The effect of a wasted costs order is set out in Rule 81. This can require the representative to pay some or all of the receiving party's wasted costs, disallow recovery of the representative's costs, and order repayment of costs already paid by the client.

[23]Rule 82 provides that a wasted costs order can be made on the Tribunal's initiative or a party's application up to 28 days after the final judgment is sent. The representative must have reasonable opportunity to make representations before an order is made.

[24]Overall, these Rules give Employment Tribunals discretion to make representatives who act improperly pay for costs wasted by their conduct, following fair process allowing representations. This prevents parties bearing the cost of unreasonable representative actions. The claimant’s representative’s submissions

[25]When the prospect of a wasted costs order was raised, Mr. Richards was afforded an opportunity to make representations.

[26]He accepted there was a conditional fee agreement with the claimant but maintained this was a common arrangement. Mr. Richards did not feel this contradicted his earlier statement to the Tribunal that he had volunteered to assist her.

[27]He submitted that he had assisted the claimant to the best of his ability and she had appeared happy with his services. Mr. Richards claimed he acted in good faith based on the information provided by the claimant.

[28]Mr. Richards argued that the law in this area was complex and he did not hold himself out as an expert. He maintained that he made a genuine effort to help the claimant pursue what she felt were legitimate grievances.

[29]He contended that decisions on which claims to advance were ultimately made by the claimant herself, not solely on his advice. Mr. Richards denied misleading the Tribunal regarding his role.

[30]While Mr. Richards apologized for any misunderstanding about his status, he opposed the appropriateness of a wasted costs order in the circumstances. He felt his conduct did not meet the necessary threshold.

[31]In conclusion, Mr. Richards submitted that a wasted costs order would be unreasonable and unnecessary given his well-intentioned efforts to help the claimant as her friend and representative. What was the claimant’s view?

[32]The prospect of a wasted costs order against Mr. Richards arose at the conclusion of the substantive hearing. As required under Rule 82, the Tribunal explicitly informed Ms. Gomes about this potential course of action and confirmed she would receive a copy of any such order made.

[33]The judge carefully explained the situation and wasted costs procedure to Ms. Gomes. She confirmed she was content, having heard the full discussions taking place, that she did not require separate written notice of any proposal to make a wasted costs order against Mr. Richards.

[34]Ms. Gomes accepted she did not fully understand the nature of some claims Mr. Richards Ms Sheilla Gomes -v- Guy’s and St Thomas’ NHS Foundation Trust [URN 2303791-2022] 18-Aug-2024 Wasted Costs Order Page 3 of 5 had advanced on her behalf. She understood that with hindsight, several claims lacked clear evidence and may have been speculative.

[35]It remained unclear what Ms. Gomes understood about Mr. Richards' qualifications, legal background and professional standing.

[36]Overall, Ms. Gomes deferred to the Tribunal on whether and to what extent Mr. Richards should bear some financial responsibility through a wasted costs order. What was the respondent’s view?

[37]When the prospect of a wasted costs order against Mr. Richards arose, the respondent was invited to make representations if they wished.

[38]However, Mr. Caiden, counsel for the respondent, confirmed that he had no submissions to make on whether a wasted costs order would be appropriate in this case. Discussion

[39]The Tribunal carefully considered whether a wasted costs order against Mr. Richards was appropriate in light of the Cambridge Dictionary definition of a 'volunteer' as "a person who does something, especially helping other people, willingly and without being forced or paid to do it."

[40]We were extremely concerned that Mr. Richards had clearly and wilfully misled the Tribunal by posing as a volunteer assisting the claimant out of good will. In reality, he had already received payment from her of £600 and expected to receive further considerable reward if her claims succeeded.

[41]This contradicted the clear and unambiguous definition of a volunteer as someone who helps willingly without payment. By holding himself out as an unpaid volunteer, Mr. Richards knowingly made a false representation to the Tribunal regarding his role and interests in the case.

[42]We afforded Mr. Richards inappropriate latitude during proceedings on the mistaken basis that he was a volunteer, not a paid representative with a direct financial interest in the outcome of the litigation.

[43]Had we known the true facts, the litigation would have been managed quite differently by the Tribunal, with Mr. Richards being held to a higher standard of competence and compliance expected of a paid representative.

[44]The Tribunal was very concerned that Mr. Richards had knowingly or negligently and actively encouraged the claimant to bring unmeritorious claims lacking reasonable prospects, requiring the respondent to unnecessarily mount defences to those claims.

[45]In the Tribunal's judgment, these unsubstantiated allegations did not warrant expenditure of time and resources on judicial determination. Yet Mr. Richards advanced them, directly causing the respondent to incur costs responding to flawed and weak claims.

[46]This wasted expenditure could have been avoided if Mr. Richards provided responsible and honest advice. His conduct in misleading the Tribunal about his role and promoting speculative claims was utterly contrary to the standards expected of a diligent representative.

[47]After carefully considering Mr. Richards' explanations, the Tribunal was not convinced that his flawed advice and conduct were reasonable in the circumstances. We did not accept his justifications or excuses. Ms Sheilla Gomes -v- Guy’s and St Thomas’ NHS Foundation Trust [URN 2303791-2022] 18-Aug-2024 Wasted Costs Order Page 4 of 5

[48]In our unanimous view, Mr. Richards' acts and omissions satisfied the criteria for a wasted costs order under Rule 80. His improper conduct directly caused the respondent to incur costs defending unmeritorious claims unnecessarily. His actions were deceptive, improper, unreasonable and negligent.

[49]Mr. Richards' deliberate misrepresentations and clearly poor management of the claimant's case did nothing to assist her. His lack of diligence in encouraging unmeritorious claims likely hindered her access to justice. Mr. Richards provided a disservice both to the Tribunal and to the claimant he purported to represent.

[50]The Tribunal was gravely troubled by the wider implications of Mr. Richards' misconduct. His wilful deception regarding his role had the potential to undermine the fairness and integrity of proceedings. It impeded the Tribunal's ability to properly manage the litigation and increased the burden on the respondent to counter unsubstantiated claims.

[51]Such disingenuous conduct by a representative is an affront to justice, undermines the rule of law, and damages confidence in the Tribunal process.

[52]The Tribunal therefore orders that Mr. Richards pay total wasted costs of £5,000 caused by his unreasonable and improper conduct.

[53]This comprised £600 to be repaid to Ms. Gomes, as Mr. Richards improperly obtained payment from her while purporting to the Tribunal that he was a volunteer.

[54]The remaining £4,400 was to be paid to the respondent, reflecting a portion of their legal costs and disbursements incurred defending unmeritorious claims that Mr. Richards actively encouraged Ms. Gomes to pursue, many of which were abandoned late in the proceedings after significant expenditure.

[55]The terms of this order were explained to Mr. Richards at the hearing; he is to make the ordered payments by 13 September 2024. Judge M Aspinall 18th August 2024 Ms Sheilla Gomes -v- Guy’s and St Thomas’ NHS Foundation Trust [URN 2303791-2022] 18-Aug-2024 Wasted Costs Order Page 5 of 5

[1]The claims for breach of contract (wrongful dismissal/notice pay) and for unpaid annual leave, having been withdrawn at the hearing, are dismissed pursuant to Rule 52 The Employment Tribunals Rules of Procedure 2013 (as amended).

[2]Claims for direct race discrimination (section 13 Equality Act 2010), harassment on the grounds of race (section 26 Equality Act 2010) and victimization (section 27 Equality Act 2010) are not well founded and are dismissed. Judge M Aspinall Friday, 16th August 2024 Written reasons Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing, or a written request is presented by either party within 14 days of the sending of this written record of the decision.