Employment Judge TaylorMr L Betchley (instructed by Counsel) for claimantMr G Baker (instructed by Counsel) for respondentDate 3 April 2023
JUDGMENT
The judgment of the Tribunal is that the respondent did not make unauthorised deductions from the claimant’s wages and the claimant’s claims are dismissed. JUDGMENT having been sent to the parties on 5 April 2023 and written reasons having been requested (by the claimant) in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
The applicable law
[1]The claimant presented a claim to the Employment Tribunal on 8 November 2022.[2]The respondent provides regulatory compliance software solutions to the pharmaceutical, biotech and healthcare industries. It is a small company currently employing four members of staff in its sales team, including the claimant.[3]The claimant made claims of holiday pay, ‘other payments’ and unlawful deduction of wages.[4]Having considered the claim form and discussed the issues at the outset of the hearing it was identified that the issue to be determined by the tribunal was: Did the Respondent make a deduction from the Claimant’s wages in respect of commission payments referable to the period 1 January 2022 to 1 July 2022?[5]The claimant argues it was a term of his contract that he was entitled to be paid commission payments calculated on purchase orders that had been raised in response to client orders. The respondent argued that the claimant was entitled to receive commission payments calculated by reference to what had been invoiced to a client during a prescribed six-month period and had received all payments lawfully due to him.
The evidence
[6]The claimant was represented by Mr L Betchley of Counsel and the respondent was represented by Mr Gus Baker of Counsel.[7]The parties prepared an agreed bundle of documents for the hearing, comprising of 326 pages. The claimant gave evidence on his own behalf and had prepared a witnesses statement and appendices comprising 154 pages. Mr Nicolas MorenoGellini, founder and director of the respondent gave evidence on behalf of the company. The witness statement of Ms Penny Hever, the company secretary of the respondent, with responsibility for payroll was taken as read.
The findings of fact
[8]Having heard and considered the documentary the evidence the Tribunal found the claimant was initially employed by the respondent from 22 March 2004 as a technical consultant. The claimant has been continuously employed for 18 years. His employment is continuing.[9]The claimant’s position in the company changed over time and he began working in a sales role. He was not issued with new or amended written terms and conditions of employment when he changed role.[10]The claimant’s basic salary at the time he presented his claim to the Employment Tribunal was £2,271 net, plus commission. Commission was paid twice a year on 1 July and the 31 January.[11]Although the claimant has a number of grievances and concerns about various aspects of his employment, including his entitlement to sick pay, it was agreed that the only matter for determination at the hearing was what sum was properly payable by way of commission from Jan 2022 - July 2022 and whether the respondent had made unauthorised deductions in respect of commission payments due to the claimant.[12]Employees engaged in a sales role were allocated an individual sales target each year (164-169). This formula was fixed by Mr Moreno-Gellini each year and the formulation changed from year to year, depending on the needs of the business as identified by him. Several factors were taken into account including, the need to attract new business and the need to encourage and motivate sales staff; for example, in recent years repeat client purchases did not qualify for commission. Mr Moreno-Gellini exchanged emails and held meetings with the small sales team, by video, to discuss the proposed commission schemes before they were set down in writing and applied to each member.[13]All sales staff received an email setting out their sales target for the year 1 January to 31 December. To qualify for a commission payment the claimant and the other members of the sales team had first to exceed their personal sales target for each six month period.[14]There was a dispute between the parties about how the commission payments were calculated. The claimant contended that commission payments were based on the date of a purchase order put through by him. The respondent disagrees. The tribunal finds that a purchase order records what product and services a client has agreed to buy and at what price. The product can be complex and often there is a continuing dialogue between the client and the company about how complex software products are delivered over a period of time.[15]The respondent gave evidence, that was accepted by the tribunal, that commission is calculated by reference to the invoice date, that is the date a request for payment is made to the client. Often a sale can result in several invoices being submitted to the client, reflecting an agreement that the contract would be delivered to the client in two or more stages, over a period of up to 4 years. As an example, commission payable to the claimant for the half year July 2016 and January 2017 headed ‘Purchase Order Schedule’ was shown to have been calculated by date of the invoice (58-59).[16]The respondent sent an email to the claimant dated 28 July 2020 dealing directly with the claimant’s claim that his commission should be calculated by reference to the purchase order date, explaining that commission cannot be paid until a purchase order has been invoiced and the invoice paid: ‘ … Re: Commission Jan-June 2020… By way of an explanation the tracking page allows me to see everything that has been invoiced and when it was paid. Novatek pays you commission based on the purchase order but if the invoice is not paid then you are not entitled to the commission. I can enter purchase orders into the tracking page that you receive commission when it become[s] due. You just need ‘ tell me which purchase orders have been agreed prior to 30 June 2020 that have not already been invoiced.’(97)[17]In an email dated 27 July 2020 Mr Moreno informed the claimant : ‘…DATES The ideal in any company is that the commissions are paid once the company gets paid. But I understand that this can be a long time and the sales team needs to be rewarded sooner. To make it work we can use the invoice date instead of the purchase order date or payment date. (96)[18]Even if there has been a change of practice or room for misunderstanding by the claimant, the documentary evidence supports the respondent’s case that from 2021 commission to the sales team was calculated from the date the client was invoiced. Several documents support the respondent. These are:18.1 Document 87, an email to the claimant dated 10 March 2021 from Mr Moreno18.2 Document 92 an email to the claimant dated 9 March 2021 from Mr Moreno18.3 Document 93 an email to the claimant dated 3 March 2021 from Mr Moreno18.4 Document 113 an email to the claimant dated 8 April 2021 from Mr Moreno18.5 Document 246 commission structure document 2021 and18.6 Document 268 commission structure document 2022.[19]The recent commission structure documents (246 and 248) evidence that employees in sale roles were notified each year of the commission scheme applicable to them, personally. Employees were entitled to commission if their sales reached the applicable minimum target. For each six-month period commission would be based on what had been invoiced during that period. Commission was calculated on invoice date. Employees are entitled only to commission from sales they themselves had made. It follows members of the sales team were not entitled to commission on sales made by their colleagues.[20]For invoices dated 1 January to 30 June any commission was scheduled to be paid by 31 July of that year. In respect of invoices dated 1 July to 31 December any commission would be paid by 31 January the following year. The claimant’s minimum target for each six month period in 2022 was £195,000 in invoiced sales. Accordingly, the respondent notified the claimant of the 2021 and 2022 commission calculation, including the minimum target for each six-month period. Between 1 January 2022 and 30 June 2022 the claimant’s invoices did not reach the minimum target (259, 260) and for the period July 2022 to December 2022 the Claimant’ total invoiced sales did not reach the minimum target (261,262,264,265,266 and 290). Therefore, the claimant was not entitled to any commission on 31 July 2022 and he was informed of this (237 and 231).[21]The claimant stated that he had not signed any document to confirm agreement to the commission structure the respondent claims applied to him. That submission does not assist his case. The respondent established that the commission structure was changed from year to year. For the purpose of this case the tribunal found the claimant was informed in clear terms on 8 April 2021 (113) that if he did not accept the proposed commission scheme, for that year, he would not be entitled to any commission at all. The claimant and all of the other members of the sales team were informed, after consultation, of the company (and individual) commission schemes for 2021 and 2022 (246 and 268).[22]The claimant continued to work for the respondent after receiving that clarification of the commission scheme that applied to him and the commission element of his pay was calculated accordingly.[23]The claimant did not resign in response to the purported change to the basis of his commission remuneration. The Tribunal was therefore satisfied on the facts of this case that from year to year to the parties reached an express agreement as to the basis on which commission would be calculated and the date on which any such commission payable. The tribunal finds that claimant was paid according to the commission agreement for the period, 1 January 2022 to 1 July 2022 (268). The applicable law Unauthorised deduction from wages[24]Section 13 Employment Rights Act 1996 provides: Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion. The submissions[25]The respondent submitted that the claimant does not have a contractual entitlement to commission pursuant to any written statement of terms. Instead, at the beginning of each calendar year the employees were notified of the commission structure that would operate. Without any such notification, there was no entitlement to commission (113). The commission structure that governed 2022 can be found on page 268. It was sent to the Claimant in February 2022 (162). The commission structure stated:a. “Commission is calculated on Invoice Date”.b. “If in a Semester you don’t reach your Min Sales, no commission will be paid that semester”.[26]The fact that commission in 2022 was based on ‘Invoice Dates’, not purchase orders, cannot have been a surprise to the Claimant. He had been told the same repeatedly in 2021 (87, 92, 93).[27]The claimant submitted that his position is that he did achieve his sales target for first half of 2022. He referred the Tribunal to several Purchase Orders and other payments which were raised in the first half of the year 2022. If given credit they would have generated the full commission payments due to him. The invoices have not been disclosed by the respondent. All of the invoices should have been released and the respondent is to be criticised for that. The claimant never agreed to the commission structure. His grievance was based on a previous commission structure paid on Purchase Orders.[28]The claimant had not been issued with a contract of employment or a notice of changes to his terms of contract, nor had he confirmed that agreed with any amendments made by the respondent. The Tribunal’s Conclusions[29]The Tribunal found that the respondent offered a commission scheme based on certain sums invoiced to clients in time for the start of every calendar year. At the start of the year and following some consultation with the sales team, including the claimant, the respondent set out how commission was to be calculated in a commission statement document. The 2021 and 2022 documents do not support the claimant’s contention that he should be paid commission calculated on purchase orders provided to the client. The burden was on the claimant to prove that he was entitled to receive commission payments on a different basis. The claimant has failed to provide any evidence that commission payable was agreed to be based on purchase orders for the period in issue.[30]The Tribunal considers that the claimant may have been motivated by grievances which he has referred to and set out both in his grievance and in the original claim form. However, those are not matters before the tribunal at this hearing, although they provide background to this claim. The Tribunal makes no criticism of the claimant who genuinely believes that he is entitled to make this claim. It is the role of the Tribunal to hear the claim and arrive at a conclusion having heard the evidence.[31]The Tribunal concludes that it is satisfied that the claimant has not proved his case. The Tribunal finds as fact that the claimant was entitled to receive commission payments for the year 2022 based on invoice payments. The claimant’s contention that commission for 2022 should have been based on purchase orders has not been made out.[32]The question for the tribunal to decide was ‘Did the respondent make a deduction from the Claimant’s wages in respect of commission payments referable to the period 1 January 2022 to 1 July 2022? The claimant has failed to show that the respondent has failed to pay him wages lawfully due and therefore his claim that the respondent made an unlawful deduction in respect of commission payments is dismissed.[33]The respondent indicated that it proposed to make an order for costs. There was insufficient time to consider the application and separate case management orders were made.[1]This matter came before the Tribunal on 3 April 2023 to consider the claimant’s claims that the respondent made unauthorised deductions from his wages.[2]The claimant’s claim was dismissed and at the conclusion of the hearing the respondent submitted that it proposed to make an application for an award of costs.[3]The respondent proposed to make an application on the ground that the claimant has acted vexatiously or otherwise unreasonably within the meaning of rule 76(1)(a), based on the claimant’s conduct of the proceedings and/or rule 76(1)(b) on the ground that the claim had no reasonable prospect of success.[4]There was insufficient time at the conclusion of the hearing to consider the application and both parties agreed that they were content for any such application to be considered on the papers (that is without a further hearing.)[5]Orders were made in respect of the respondent’s proposed application for an award of costs.[6]The respondent subsequently provided its written application, submissions and bundle of documents on 17 April 2023. The bundle comprises of 102 pages and includes a detailed costs warning letter sent to the claimant on 24 February 2023 (R’s bundle 44-49)[7]The claimant responded to the application on 2 May 2023, resisting the application for an award of costs. The claimant provided written submissions and a bundle of documents comprising 110 pages.[8]As agreed at the substantive hearing the tribunal has considered the application for costs on the papers and without a further hearing. The documents and submissions were considered when arriving at this decision. The facts relevant to the costs application[9]The claimant was employed by the respondent from 22 March 2004.[10]On or about March 28 2022 the claimant raised grievances and concerns, alleging continuous discrimination, bullying, harassment, and being deprived of access to his IT system, changes of payment terms to (allegedly) deprive him of commission. The claimant considers that the grievances were completely disregarded by Novatek Europe (C27-37).[11]The claimant has been continuously absent on sick leave since 20 June 2022. The claimant received the salary to which he was entitled before his period of sickness absence commenced.[12]The claimant presented a claim form on 8 November 2022, after contacting ACAS.[13]The claimant did not disclose on what dates, but the claimant initially engaged a solicitor, for a short period, who was exclusively instructed by him to handle any settlement discussions.[14]By its Grounds of Resistance, received by the claimant on 19 December 2022, the respondent provided a full response to his claims.[15]The respondent explained to the claimant that a claim cannot be brought in respect of an internal HR process, such as a grievance or disciplinary procedure, where there has not been a dismissal. The claimant was not entitled to contractual sick pay. Claims for stress and anxiety at work and alleged loss of earnings cannot form part of a deduction from wages claim.[16]The claimant’s only entitlement to pay is to statutory sick pay (SSP). The claimant has received the SSP to which he is entitled since the beginning of his period of sickness absence, which commenced on 20 June 2022.[17]The claimant alleged that he is a shareholder. The respondent set out that was no factual basis for this allegation. The claimant is not a shareholder entitled to dividend payments. The claimant was informed by the Grounds of Resistance that in any event such a claim is not within the jurisdiction of the tribunal.[18]The Grounds of Resistance also explained that none of the other matters referred to in the claim form are matters within the jurisdiction of the tribunal in respect of the claims in this case.[19]The claimant subsequently alleged he was entitled to a payment in respect of untaken holiday leave. On 15 February 2023, the claimant was informed that employment law does not permit payment for any accrued but untaken annual leave while the employment contract continues (R58).[20]The respondent informed the claimant on several occasions that the only part of the claim that was within the jurisdiction of the tribunal was the claim for unauthorised deduction from wages for the first half of 2022 (R27-30).[21]On 10 December 2022, the claimant wrote to both the respondent’s solicitors and the respondent with his calculation of loss (R15).[22]On 12 December 2022, the respondent’s solicitors informed the claimant that he needed to write to them and not to their client regarding his employment tribunal claim (R25).[23]The claimant ignored this request on several occasions after that date.[24]The claimant asked the respondent to copy its correspondence to a trade union representative (R23). The respondent explained that the representative was not on the record as acting for him and therefore it would not copy documents as requested.[25]The respondent wrote to the claimant informing him that, in correspondence about his employment tribunal claim, he was continuing to refer to matters which are not, and cannot be, within the scope of the claim he is bringing. The claimant also ignored this request, alleging that he had been informed by the respondent that he could write to the solicitors about all of his employment complaints (R18-19).[26]On 3 February 2023 the respondent warned the claimant that he should limit his correspondence to matters relevant to the claims which are within the jurisdiction of the employment tribunal (R32-33). The claimant ignored the warning and continued to correspond and demand information and disclosure of documents concerning claims other than commission payments for the year 2022.[27]On 24 February 2023, the respondent wrote to the claimant with a formal costs warning (R44-49). The Respondent’s Costs Application[28]The first part of the respondent’s application is for the Tribunal, in accordance with rule 76(1)(a) of the Employment Tribunals Rules of Procedure 2013, to make an order that the claimant pay the respondent’s costs on the grounds that the claimant has acted vexatiously, abusively, disruptively or otherwise unreasonably in the way that the proceedings (or part) have been conducted. The second part of the application is for a costs order to be made pursuant to rule 76(1)(b), on the ground that the claims had no reasonable prospect of success.[29]The claimant sought to pursue several allegations and claims. Some allegations or claims could not have been considered by a tribunal because they did not fall within the tribunal’s jurisdiction, others were misconceived and hopeless. The claimant pursued these claims and despite the respondent clearly setting out its case in the Grounds of Resistance and repeatedly informing him that they had no prospect of success. The claimant alleged he was entitled to sick pay, even though it was made clear that he was not entitled to further payments. The claimant did not dispute that all sums lawfully due to him by way of statutory sick pay had been paid to him by the respondent, yet he pursued a claim for sick pay. The claimant claimed that he was a shareholder and entitled to payments in respect of dividends. The claimant had no factual basis for contending that he was a shareholder entitled to a dividend payment. He was informed that even if this were true such a claim was not a matter that could be dealt with by the employment tribunal, but despite this he pursued a claim for damages. The claimant sought to pursue a breach of contract claim for damages for stress and anxiety at work, and in respect of internal HR process such as grievance or disciplinary procedure. He was informed by the respondent that such claims could not be presented by an employee to the employment tribunal but continued making such claims.[30]Although he was informed by the respondent the reasons why the claims could not be successfully brought the claimant continued to pursue them. The only claim properly before the tribunal, was the issue of whether the respondent had made unauthorised deductions from the claimant’s wages for the first half of 2022. The respondent’s case was that the claimant’s sales for the whole of 2022 did not meet the minimum commission threshold for that period, even were the amount calculated on the basis that the claimant contended. This claim had no reasonable prospect of success.[31]In addition, the claimant conducted the proceedings in a way that was vexatious, abusive, disruptive and unreasonable. Despite being asked to desist, on several occasions the claimant persisted in writing to the respondent’s clients, instead of to the solicitors acting on its behalf, and also persisted in corresponding about allegations that were not properly the subject matter of the claim. This conduct caused unnecessary waste of time and costs.[32]The costs the respondent attributed to the claimant’s conduct is set out in the cost schedule included in the application, in the amount of £4851.00. The Claimant’s Submissions[33]In summary, the claimant submits that the respondent's application for a costs order under rule 76(1)(a) of the Employment Tribunals Rules of Procedure 2013 is without merit. The respondent has failed to provide any specific evidence or examples to support their claim that he has acted vexatiously, abusively, disruptively, or otherwise unreasonably in the conduct of the proceedings. The respondent's own conduct throughout these proceedings has been far from exemplary because it has obstructed all attempts by the claimant to amicably resolve this dispute. The fact that he did not have legal representation and could not afford any legal representation should be taken into account when considering a cost order. The respondent's failed to engage in constructive dialogue and failed to address his grievances. One point in his grievances was the change of payment terms for how commission was paid. Had the respondent taken steps to address his concerns and worked with him to resolve this matter amicably, it is highly probable that the need for legal action could have been avoided. The respondent’s application is contested on the grounds that their conduct was a significant contributing factor to the legal expenses incurred in this matter.[34]The costs incurred by the respondent were not reasonable and proportionate. Pursuing a claim to protect his rights and interests should not be discouraged, and a cost order would undermine the principle of access to justice.
The applicable law
[35]Rule 76 of the Employment Tribunal’s 2013 Rules of Procedure provides that a costs or time preparation order may be made and a Tribunal shall consider whether to do so, where it considers that:(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success.(c) ….[36]The procedure for making a costs application is set out at rule 77; "A party may apply for a costs order … at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application."[37]Rule 78 provides that a Tribunal may: '(a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;(b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Pules 1998, or by an Employment Judge applying the same principles; or, in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993,or by an Employment Judge applying the same principles;’[38]Rule 84 provides that a Tribunal may have regard to the paying party’s ability to pay: "In deciding whether to make a costs… 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.”[39]In Gee -v- Shell UK Limited [2003] IRLR 82 Sedley LJ stated: “It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to ordinary people without the need of lawyers and that in sharp distinction from ordinary litigation in the United Kingdom losing does not ordinarily mean paying the other side’s costs”.[40]Where applicable, a Tribunal should explain what impact the paying party’s means had on its decision to award costs and/or how much those costs should be (Jilley - v- Birmingham Solihull Mental Health NHS Trust EAT UKEAT/0584/06).[41]The Employment Appeal Tribunal has given guidance that whilst the threshold test governing the award of costs is the same whether a party has been represented or not, the exercise of discretion should take into account whether the party in question has been professionally represented. A litigant in person should not be judged by the same standards as a professional representative. This is because the self-representing litigant may lack the objectivity of law and practice that a professional representative will generally bring to bear (AQ Ltd v Holden [2012] IRLR 648).[42]The Tribunal has considered whether the claimant behaved in the manner proscribed by the rules. The Tribunal’s deliberations and decision[43]The Tribunal firstly considered whether the claimant’s conduct of these proceedings has met the threshold of being vexatious, abusive, disruptive or unreasonable within the meaning of Rule 76(1)(a) or whether the claim heard before the Tribunal had any reasonable prospect of success (Rule 76(1)(b)).[44]Although, the claimant appears to have had some contact with a trade union representative and also initially engaged a solicitor, the claimant did not have continuity of representation for the duration of these proceedings. Therefore, in considering the claimant’s conduct, the Tribunal had regard to the fact that the clamant was effectively unrepresented. Accordingly, the Tribunal does not expect the claimant to have attained the same standards of understanding and conduct as would be expected of a professional representative.[45]The Tribunal is satisfied that the respondent, through their solicitors, explained to the claimant why the majority of his allegations and claims could not be heard by a tribunal and why the claim that could proceed (concerning commission payable for the first half of 2022) had no prospect of success. In addition, the respondent made reasonable requests of the claimant to limit his correspondence to only relevant matters, that were properly the subject matter of the tribunal hearing. The respondent explained their reasons and set out the potential cost consequences if he ignored their request.[46]While the correspondence provided shows that the allegations formed part of the claimant’s ongoing grievance, the claimant has not explained why he pursued claims (concerning sick pay, breach of contract (dividends) and grievance procedure etc) that he was informed were hopeless.[47]The Tribunal is satisfied that the claimant pursued the 2022 commission claim because he considered it had merit. The claimant simply did not accept that the respondent could change the basis on which commission was calculated.[48]The claimant has also not properly explained to the respondent or the tribunal why he did not comply with the respondent’s request to only write to the solicitors about matters relevant to the tribunal litigation. The reason he gave to the solicitors, that he had been informed that he could do so by the respondent was not evidenced.[49]Having considered the documents, the application and the submissions of the parties, the Tribunal is satisfied that claimant considered that all of the matters he raised as part of his internal grievance were part of the litigation. The Tribunal accepts the respondent’s submissions that the claimant’s conduct in pursuing claims concerning sick pay, breach of contract (dividends) and grievance and disciplinary procedure (etc) led to the respondent incurring unnecessary costs. The Tribunal considered whether in pursuing these claims the claimant had behaved in a manner that was vexatious, abusive, disruptive or unreasonable[50]The Tribunal bears in mind that at the hearing the claimant, who was at that time represented, effectively limited his claim to the commission payments for the first half of the year 2022. The claimant did not, having had the assistance of his representative, attempt to pursue the other allegations or claims. The claimant therefore demonstrated that he was capable of understanding legal advice and acting appropriately given the opportunity. It is likely that had legal representation been continuously available to him from the outset the claimant might have arrived at that decision earlier in the conduct of this case.[51]The claimant has referred to the background to the claim in his reply to the costs application. The claimant has worked for the respondent since its inception and for over 19 years. He had a number of unresolved grievances by the time he presented his claim. The Tribunal’s view is that this background of ill feeling towards the respondent, in addition to the lack of timely independent legal representation may have contributed to the claimant not arriving at a clear understanding about the strength and weakness of different aspects of his claim, or what was or was not relevant correspondence to the respondent’s solicitors.[52]Having considered all of the matters set out above I am satisfied that the claimant did not behave vexatiously, abusively, disruptively or unreasonably in pursuing the claim or conducting the claim within the meaning of Rule 76(1)(a). The claimant genuinely believed that he was entitled to make all of the claims. The claimant as a litigant in person did not appear to have had the understanding sufficient to process what was set out in the Grounds of Resistance and what was being explained to him by the respondent, as would be expected of a professional representative.[53]The Tribunal considered that all of the claims before the Tribunal had no prospect of success within the meaning of Rule 76(1)(b). At the hearing the claimant only pursued the 2022 commission claim. As submitted by the respondent the claimant’s sales for the whole of 2022 did not meet the minimum commission threshold for that period, even were the amount calculated on the basis that the claimant contended. It is evident to the Tribunal that the claimant pursued this claim of unlawful deductions from wages because he considered it had (and still believes it has) merit.[54]Having concluded that the 2022 commission claim, in addition to the other claims, had no prospect of success, the Tribunal must proceed to consider whether to exercise its discretion to make a costs order.[55]It is an important feature of the employment jurisdiction that it is designed to be accessible to ordinary people without the need of lawyers. Nevertheless, the law is complex and litigants in person often find tribunal proceedings difficult to navigate. The Tribunal also bears in mind that the losing a claim in the employment tribunal does not ordinarily mean paying the other side’s costs[56]Having considered the applicable law and all of the circumstances of this case, the Tribunal has concluded that an order for costs should not be made.[57]In arriving at this decision, the Tribunal considers that justice requires that tribunals do not apply professional standards to lay people who lack knowledge of law and practice and who lack the objectivity that would be expected of a professional legal adviser. The claimant is of limited means and appears to have brought and continued proceedings with limited legal assistance.[58]The claimant arranged legal representation for the hearing and when he received advice at the hearing the claimant demonstratively followed that advice and properly limited his claim to the only remaining justiciable matter. The claimant has a genuine belief that he had a meritorious claim and pursued it for that legitimate reason. The claimant was entitled to have the claim considered by a tribunal and it is not appropriate to order costs in such circumstances.[59]The Tribunal therefore dismisses the respondent’s application for an award of costs.