Mr R Choudhury v London Borough of Southwark: 2304086/2017

EMPLOYMENT TRIBUNALS

Case No 2304086/2017

Between

Mr R ChoudhuryClaimant

London Borough of SouthwarkRespondent

Before

Employment Judge Baron

Date 12 June 2023

JUDGMENT

The claims made by the Claimant for arrears of pay and for annual leave pay in these proceedings are dismissed under rule 52 of the Employment Tribunals Rules of Procedure 2013 following a withdrawal of the claim by the Claimant. The remaining claims will proceed to a hearing. JUDGMENT The claim made by the Claimant in these proceedings that the Respondent was in breach of section 47B of the Employment Rights Act 1996 is dismissed under rule 52 of the Employment Tribunals Rules of Procedure 2013 following a withdrawal of the claim by the Claimant. The remaining claims will proceed to a hearing. JUDGMENT on PRELIMINARY HEARING

[1]The claim of unfair dismissal under section 103A of the Employment Rights Act based on alleged protected disclosures one, two, the email of 29 March 2017 in three and four is struck out as having no reasonable prospect of success.

[2]The claim under section 103A based on an email dated 4 April 2017 is not struck out nor is it made subject to a deposit order.

[3]The claim of detriment because of having made protected disclosures is dismissed on withdrawal.

REASONS

[4]This preliminary hearing was fixed in order to consider the Respondent’s application to strike out the claims based on four alleged protected disclosures. The alleged protected disclosures relied upon by the Claimant are specified at paragraphs 21 – 25 of his Particulars of Claim.

[5]The Respondent has made its position known since its ET3 that the Claimant’s case under section 43B, 47B and 103A lacked clarity and had no reasonable prospects of success. At a previous preliminary hearing on 4th April 2018, EJ Baron listed this preliminary hearing because he considered that Claimant’s claim relating to protected disclosures was unclear. Since then, notwithstanding the passage of time, the Claimant has not sought to clarify his claim at any point.

[6]The Claimant withdrew his claim of detriment because of having made protected disclosures on 18 May 2018, accordingly this claim is dismissed. Alleged disclosures

[7]The first alleged disclosure is at paragraph 21 of the Claimant’s Particulars of Claim. The Claimant relies on an FOI request he made on 22nd October 2016, and an email dated 22nd November 2016 in which he complained about delay in processing the request. The Respondent accepts that the FOI request was made, and it was acknowledged in an email dated 18th November 2016 which states that his request was received on 14 November and replied to on 25 November 2016.

[8]The second alleged disclosure is at paragraph 23 of his Particulars of Claim. The Claimant refers to a complaint he raised about a right to buy valuation on 13th January 2016. At paragraph 9 the Claimant describes an email as follows: “… the Claimant emailed a complaint to the Chief Executive, Councillor Karl Eastham, and the leader of the council cabinet regarding his right to buy application and stating that equality has not been complied [sic].” Neither party has the email referred to.

[9]The third alleged disclosure is at paragraph 23 of his Particulars of Claim, the Claimant refers to a complaint he raised about his right to buy valuation on 29th March 2017 and 4th April 2017. At paragraph 11 the Claimant describes these emails as follows: “the claimant sent an email on 29th March 2017 to the District Valuer and was informed that the Adjudicator’s Office had been contacted to carry out an investigation into the respondent. This email was then forwarded and the right to buy complaint was reiterated on 4th April 2017 to the respondent’s Chief Executive, Neil Coyle MP, and Councillor Mark Eastham. The claimant highlighted his concerns that council properties were being sold below market value.” During the course of the hearing, the Claimant’s solicitor accepted that the email of 29 March could not be a disclosure. Neither party has the email of 4 April 2017.

[10]The fourth alleged disclosure is that the Claimant relied on a complaint he made to the ICO on 27 October 2017. The respondent pointed out that as the claimant had been dismissed on 13 July 2017 and his appeal had been determined by 25 September, he was no longer a worker and hence this cannot amount to a qualifying disclosure. The Claimant’s solicitor withdrew the case so far as based on the fourth alleged disclosure. Submissions

[11]The Tribunal heard oral submissions from both parties and considered written submissions from the respondent.

Law

[12]For the Claimant’s claim under section 103A to succeed, he must establish:a. That he has made a protected disclosure(s) within the statutory meaning.

b. That, as a matter of causation, the reason or principal reason for the dismissal was that he made a protected disclosure(s).

[13]The Claimant requires to prove that he made a qualifying disclosure within the meaning of section 43B (1): “In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.”

[14]It has been held that a qualifying disclosure must be a disclosure of information, which means the conveying of facts, as opposed to mere allegation: Cavendish Munro Professional Risks Assessment Ltd v. Geduld

[2010] IRLR 38

. In Kilraine v. London Borough of Wandsworth

[2018] ICR 1860

CA, the Court of Appeal supported the EAT’s view that a rigid dichotomy between information and allegation should not be read into section 43B, but that a disclosure must contain sufficient detail and content to be capable of tending to show one of the prescribed categories of information in section 43B (1). Ultimately, this will be an evaluative judgement for the Tribunal to make, see paragraphs 30 – 36. Further, it was held that the context in which the disclosure is made is a relevant consideration, see paragraph 41.

[15]The editors of Harvey at CIII(4)(C) [21] summarise the position as follows: “… in effect there is a spectrum to be applied and that, although pure allegation is insufficient (the actual result in Cavendish), a disclosure may contain sufficient information even if it also includes allegations… The question therefore is whether there is sufficient by way of information to satisfy s 43B and this will be very much a matter of fact for the tribunal. Clearly, the more the statement consists of unsupported allegation, the less likely it will be to qualify, but this is as a question of fact, not because of a rigid information/allegation divide.”

[16]Once a disclosure has taken place it becomes necessary to consider whether or not that disclosure can be categorised as a qualifying disclosure. This largely depends upon the nature of the information revealed. As an initial starting point, it is necessary that the worker making the disclosure has a reasonable belief that the disclosure tends to show one of the statutory categories of ‘failure’ (ERA 1996 s 43B (1)). It needs to be stressed that what is required is only that the worker has a reasonable belief and it is not necessary for the information itself to be actually true. It follows that a disclosure may nevertheless be a qualifying disclosure even if it subsequently transpires that the information disclosed was incorrect. This was made clear by the Employment Appeal Tribunal in Darnton v. University of Surrey

[2003] IRLR 133

EAT. In that case the employment tribunal had held that the claimant had not made a qualifying disclosure because the allegations relied upon were not factually correct. In allowing the employee's appeal, the Employment Appeal Tribunal confirmed that the proper test to be applied is whether or not the employee had a reasonable belief at the time of making the relevant allegations. Although it was recognised that the factual accuracy of the allegations may be an important tool in determining whether or not the employee did have such a reasonable belief the assessment of the individual's state of mind must be based upon the facts as understood by him at the time.

[17]The determination of whether a belief is reasonable is dependent on his subjective believe, but that belief must be objectively reasonable: Babula v Waltham Forest College

[2007] IRLR 346

[18]In Chesterton Global Ltd. v. Nurmohamed

[2018] ICR 731

CA at paragraphs 35 - 37, on the issue of public interest, it was held: “[35] …It is in my view clear that the question whether a disclosure is in the public interest depends on the character of the interest served by it rather than simply on the numbers of people sharing that interest. That is in my view the ordinary sense of the phrase "in the public interest"… [36] The statutory criterion of what is "in the public interest" does not lend itself to absolute rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably be believed to be… The larger the number of persons whose interests are engaged by a breach of the contract of employment, the more likely it is that there will be other features of the situation which will engage the public interest. [37] Against that background, in my view the correct approach is as follows. In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B (1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. Mr Reade's example of doctors' hours is particularly obvious, but there may be many other kinds of case where it may reasonably be thought that such a disclosure was in the public interest. The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case, but Mr Laddie's fourfold classification of relevant factors which I have reproduced at para. 34 above may be a useful tool. As he says, the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph.”

[19]The ‘Laddie factors’ referred to are:(a) the number of workers in the group whose interests the disclosure served;

(b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed;

(d) the identity of the wrongdoer. Requirement of fair notice of a claim

[20]It is trite to say that parties should know, in advance, reasonable details of the nature of the complaints that each side is going to make at the hearing, see White v. University of Manchester

[1976] ICR 419

EAT. STRIKING OUT

[21]Rule 37(1)(a) provides: “(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— that it is scandalous or vexatious or has no reasonable prospect of success;”

[22]As a general principle, discrimination cases should not be struck out except in the very clearest circumstances, Anyanwu v. South Bank Students’ Union

[2001] IRLR 305

HL. Similar views were expressed in Chandhok v. Tirkey

[2015] IRLR 195

, EAT, where Langstaff J reiterated (at paras 19–20) that the cases in which a discrimination claim could be struck out before the full facts had been established are rare; for example, where there is a time bar to jurisdiction, where there is no more than an assertion of a difference of treatment and a difference of protected characteristic, or where claims had been brought so repetitively concerning the same essential circumstances that a further claim would be an abuse. Such examples are the exception, however, and the general rule remains that the exercise of the discretion to strike out a claim should be ‘sparing and cautious’.

[23]As whistleblowing cases have much in common with discrimination cases, in that they too are fact-sensitive and involve similar public interest considerations, (see Ezsias v. North Glamorgan NHS Trust

[2007] ICR 1126

CA, applications to strike out should be approached with great care.

[24]In Abertawe Bro Morgannwg University Health Board v. Ferguson

[2013] ICR 1108

EAT, at paragraph 33, it was said “Applications for strike out may in a proper case succeed. In a proper case they may save time, expense and anxiety. But in a case which is always likely to be heavily fact sensitive, such as one involving discrimination or the closely allied ground of public interest disclosure, the circumstances in which it will be possible to strike out a claim are likely to be rare. In general, it is better to proceed to determine a case on the evidence in light of all the facts.”

[25]An employment judge has power under Rule 37(1)(a), at any stage of the proceedings, either on its own initiative or on the application of a party, to strike out all or part of a claim or response on the ground that it has no reasonable prospect of success. In Hak v, St Christopher’s Fellowship

[2016] ICR 411

EAT, the then President of the Employment Appeal Tribunal said, at paragraph 54: Rule 37 of the Employment Tribunal Rules 2013 provides materially:- “(i) At any stage in 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) Where it is scandalous or vexatious or has no reasonable prospect of success…”55. The words are “no reasonable prospect”. Some prospect may exist, but be insufficient. The standard is a high one. As Lady Smith explained in Balls v Downham Market High School and College

[2011] IRLR 217

, EAT (paragraph 6): “The Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the words “no” because it shows the test is not whether the Claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in the submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects…”

56. In Romanowska v. Aspirations Care Limited [2014] (

UKEAT/015/14

) the Appeal Tribunal expressed the view that where the reason for dismissal was the central dispute between the parties, it would be very rare indeed for such a dispute to be resolved without hearing from the parties who actually made the decision. It did not however exclude the possibility entirely.

[26]The EAT has held that the striking out process requires a two-stage test in HM Prison Service v. Dolby

[2003] IRLR 694

EAT, at para 15. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim, order it to be amended or order a deposit to be paid. See also Hassan v. Tesco Stores

UKEAT/0098/19/BA

at paragraph 17 the EAT observed: “There is absolutely nothing in the Judgment to indicate that the Employment Judge paused, having reached the conclusion that these claims had no reasonable prospect of success, to consider how to exercise his discretion. The way in which r 37 is framed is permissive. It allows an Employment Judge to strike out a claim where one of the five grounds are established, but it does not require him or her to do so. That is why in the case of Dolby the test for striking out under the Employment Appeal Tribunal Rules 1993 was interpreted as requiring a two stage approach.” .

[27]It has been held that the power to strike out a claim on the ground that it has no reasonable prospect of success should only be exercised in rare circumstances (Tayside Public Transport Co Ltd (t/a Travel Dundee) v. Reilly

[2012] IRLR 755

, at para 30). More specifically, cases should not, as a general principle, be struck out on this ground when the central facts are in dispute. DEPOSIT ORDERS

[28]A deposit order can be made if the specific allegation or argument has little reasonable prospect of success. It was noted in Van Rensburg v. Royal Borough of Kingston-Upon-Thames

UKEAT/0095/07/MAA

at paragraph 27 that: “Moreover, the test of little prospect of success in r 20(1) is plainly not as rigorous as the test that the claim has no reasonable prospect of success found in r 18(7). It follows that a tribunal has a greater leeway when considering whether or not to order a deposit. Needless to say, it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response.”

[29]In Hemdan v. Ishmail

[2017] IRLR 228

, Simler J, pointed out that the purpose of a deposit order ‘is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails’ (para 10), she stated that the purpose ‘is emphatically not to make it difficult to access justice or to effect a strike out through the back door’ (para 11).

[30]As a deposit order is linked to the merits of specific allegations or arguments, rather than to the merits of the claim or response as a whole, it is possible for a number of such orders to be made against a claimant or respondent in the same case. DISCUSSION and DECISION

[31]The first alleged disclosure is an FOI request. The Tribunal considered that an FOI request cannot amount to a protected disclosure. It is a statutory procedure for requesting information, as opposed to a disclosure of information.

[32]The second alleged disclosure as described does not fall within section 43B(1)(b) in terms of subject matter. In addition, the Claimant will fail to establish any reasonable belief in the public interest, because this was an email about his personal housing application. Although there is a reference to equality, this cannot be taken as a reference to discrimination without specification.

[33]In the third alleged disclosure, the Claimant says that the same email which he sent on 29th March 2017 to the District Valuer was then forwarded onto Neil Coyle MP and Councillor Eastham on 4th April 2017. The Claimant does not say what was contained in the email of 29th March 2017.

[34]In respect of the 4th April 2107 email, the Claimant says that he raised more general concerns that properties were being sold below market value. Whether such a disclosure as ever made, whether it is protected or not and whether it has any causative relationship with the dismissal is a matter for evidence.

[35]The Tribunal considered how to exercise its discretion in the light of its findings. It determined to strike out the allegations with the exception of that based on the alleged email of 4 April 2017.

[36]The Tribunal considered whether or not to make a deposit order in relation to the remaining allegation but decided not to do so as, without evidence, it could not determine that the claim had little prospect of success, at this stage.

Conclusions

[37]In relation to the first allegation, there was no dispute that between applying for council accommodation in 2005 and being granted it in 2009, the Claimant’s circumstances changed in that he became part owner of another property. The Claimant’s case before the disciplinary panel was that there was no duty to disclose his property purchase as it was not a “home” but an investment. He claimed that he had discussed his proposal to purchase property as an investment with a Housing Officer when completing the application and that was the advice she had given. [558]. The Claimant did not provide any details of the person he spoke to and the Respondent did not consider his explanation credible. That evidence was repeated in the Tribunal and I too found it lacking in credibility, not least because he told the Tribunal that the person he spoke to was a gentleman but the disciplinary interview notes record that the Claimant referred to the person as “she”. The Claimant said that the notes were wrong and that he had referred to “he” in the hearing. The Claimant repeated asserted during the hearing that the Respondent’s notes were inaccurate. On those occasions, the notes either did not not support his evidence or directly contradicted it. The Claimant was not a credible witness. His evidence was evasive, contradictory with itself and with contemporaneous documents, and he was unnecessarily argumentative. His approach to cross examination was not to concede anything until forced to, even when it was obvious that such a concession should have been made. For example, when it was put to him that in his email of 4 April 2017 he was complaining about delays by the Respondent in dealing with his “right to buy” application and the additional rent he had had to pay as a result, he immediately said “No” even though this was obvious from reading the email. It was only when I pointed out that this apparent contradiction that he changed his response to “Yes”.

[38]I am satisfied that, based on its investigation, the Respondent was entitled to reject the Claimant’s explanation and to find that there had been a deliberate failure to disclose his changed circumstances.

[39]Turning to allegation 4, the Respondent relies on the Claimant’s reply to MJ’s email of 27 September 2016, (para 25 refers) as the basis for its belief that he provided false information. The Claimant accepted during the disciplinary process that he had provided incorrect information to a senior manager but contended that it was not misconduct and put forward mitigating circumstances to do with his difficult relationship with his brother. However, the Claimant’s evidence before the Tribunal was significantly different. At paragraph 23 of his witness statement, he claims that on receipt of the email from MJ, he rang his line manager, MD, and declared his relationship with his brother. Further, in his oral evidence, he told the Tribunal that MD had told him what to say in his email response to MJ and had approved it before it was sent. When it was put to the Claimant that none of this was said at the disciplinary hearing, he claimed that it was and that this was another example of the hearing notes being inaccurate. SB denied that this was said at the disciplinary hearing and I prefer his evidence. It is highly implausible that such an important factor would have been omitted from the notes, particularly as the Claimant’s trade union representative put forward other mitigation, which was noted. MD gave evidence and denied that any such conversation took place with the Claimant. I prefer MD’s evidence on this, not least because no reference is made to this in the Claimant’s letter of appeal or in the appeal notes, which I also find to be an accurate account of what took place. I am satisfied that the Respondent had reasonable grounds for its belief in allegation 4.

[40]I am satisfied, based on the Respondent’s investigation that it was entitled to reach the conclusions it did on the evidence before it. The investigation was in accordance with its disciplinary policy and within ACAS guidelines. It was thorough and involved interviews with relevant individuals, including the Claimant, who was given every opportunity to defend himself against the allegations and did so at length. I heard evidence from the decision makers who gave reasoned explanations for their conclusions, which, I am satisfied, were reached in good faith.

[41]The Claimant raised one procedural issue in relation to the dismissal and that was that the dismissal letter did not adequately set out the reasons. The Claimant does have a point as the letter simply informs the Claimant that 2 of the charges are upheld without saying why. However, this was corrected at the appeal stage where SB attended the hearing and presented a report setting out his reasons for his findings in relation to both charges [ 591-595]. The appeal outcome letter also set out the reasons in detail. I am therefore satisfied that the absence of detail in the dismissal letter did not affect the overall fairness of the investigation.

[42]I find that the reason for dismissal is made out. Was dismissal in all the circumstances fair?

[43]The Claimant contended that dismissal was too harsh a sanction and that neither of the charges amounted to gross misconduct. Gross Misconduct is defined in the disciplinary procedure as: “misconduct of such a serious nature that it fundamentally breaches and destroys the contractual relationship between an employer and an employee. It is an act (or an omission) which makes any further working relationship and mutual trust impossible”. [1116]

[44]In relation to allegation 1, although housing applications are not means-tested and property ownership does not preclude one from applying for council accommodation, the ownership of property is relevant to the assessment of housing priority and need. Part of that assessment will be a person’s ability to pay rent privately. This offence occurred against the background of an acute housing crisis in London and a waiting list of 10,000 applicants for social housing within the borough. The Respondent has a duty to allocate housing with the highest standards of transparency and probity and the Claimant as an employee would have been aware of this. The Respondent was therefore entitled to view his non disclosure of his part-ownership of another property while in the process of applying for council accommodation as a serious matter.

[45]Whilst allegation 1 involved an act of non disclosure, allegation 2 involved a positive act of deliberate falsehood. SB said in evidence that this offence, in particular, coupled with the Claimant’s deletion of documents from his computer relevant to the investigation caused it to conclude that there had been a breakdown of the relationship of trust. I am satisfied from the evidence that the Respondent was entitled to form that view.

[46]In all the circumstances I find that dismissal was fair. The unfair dismissal claim therefore fails. Wrongful Dismissal

[47]I am satisfied from the evidence that the Claimant was guilty of the 2 allegations leading to his dismissal. I am also satisfied that the Claimant’s deletion of emails and a folder headed “RTB” from his computer on the very day that he was informed of concerns raised by the fraud department about his right to buy application was done in order to destroy/conceal relevant evidence. His assertion to the tribunal that the initials “RTB” did not stand for Right to Buy and that the deletions were done in order to clear his computer inbox of excessive emails was not credible and is rejected.

[48]I am satisfied that the Claimant’s conduct amounted to a fundamental breach of the employment contract, entitling the Respondent to terminate without notice. The wrongful dismissal claim is therefore dismissed. Judgment All claims fail and are dismissed.

Conclusions

[1]This was a hearing to consider the respondent’s costs application of the 19 February 2020, following the Tribunal’s judgment on liability in this case, sent to the parties on 24 January 2020.

[2]The application was made under rule 76(1)(a) and (b) of the Employment Tribunal’s Rules of Procedure 2013 (the “Rules”). Rule 76 provides that if a party against whom an application for costs is made is considered by the tribunal to have either, in bringing the proceedings or in conducting them, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the claim or response had no reasonable prospect of success, then the tribunal must consider making a costs order against that party.

[3]The respondent pursues its application on grounds of the claimant’s unreasonable conduct and that the claims had no reasonable prospect of success. Issues

[4]The issues that I have to determine are:a. whether the threshold for a costs order has been met;

b. whether a costs order should be made; and

c. if so, in what amount

[5]In dealing with these issues, I have taken into account my findings on liability and the parties’ written and oral representations.

[6]For the hearing, the respondent produced a costs bundle. References in square brackets in the judgment are to pages in that bundle. On the afternoon before the hearing, the claimant sent an email to the Tribunal with 15 separate attachments which he wanted added to the bundle. Some of the documents were already in the bundle, others were new. The new documents of relevance were a witness statement for the costs hearing and a document headed: Projected Forecasted Means. There were also some medical records, which included a further version of a psychiatric report of 26.3.23, already in the bundle, with the claimant’s first name and date of birth redacted. Has the threshold for a costs order been met? Unreasonable conduct

[7]There were 3 aspects to this ground:(i) The respondent contended that it was unreasonable for the claimant to pursue his automatic unfair dismissal claim, which relied on one alleged qualifying disclosure (the other 3 having been struck out). The said qualifying disclosure was an email dated 4.4.17. I deal with this issue in my conclusions at paragraphs 31-32 of the liability judgment. There, I found that the email was virtually identical to one dated 29.3.17, which the claimant’s solicitor had, at an earlier preliminary hearing, conceded was not a qualifying disclosure. Further, I found based on this and on a proper reading of the email that the claimant did not have a reasonable belief that there had been a breach of a legal obligation [57] The claimant contended that he was misadvised by his Solicitor. Firstly, there is no evidence of this but in any event, that is a matter for him to pursue elsewhere and does not affect whether the threshold for a costs order has been met. I am satisfied that the claimant’s continued pursuit of the automatic unfair dismissal claim was unreasonable.

(ii) The respondent submitted that the claimant acted unreasonably by giving dishonest evidence at the liability hearing. They rely on a number of credibility findings, at paragraphs 32, 33, 37,39 and 47 of the judgment [57-60]. Although I did not expressly find that the claimant was lying, I am satisfied from my findings that the claimant could not have reasonably believed the truth of the matters about which he testified. iii. The respondent contended that the claimant persistently failed to comply with case management orders. The respondent made 2 applications for unless orders. The first was on 29.8.19 due to the claimant’s failure to comply with disclosure orders, despite several chasing emails [66-67]. This was renewed on 10.10.19 [69-70] The second application was made on 25.11.19 due to the claimant’s failure to exchange witness statements. No satisfactory explanation was given at the time for the non compliance. The claimant did not exchange statements until 3 working days before the final hearing. That statement included new allegations, which were pertinent to the issues but not part of the pleaded case nor ever previously raised. This required the respondent, at short notice to call 2 additional witnesses and incur additional legal costs associated with this.

[8]The claimant has produced a detailed written response to the application, which appears to have been professionally drafted. I have taken it into account and make reference to it further on in the judgment. [75-80].

[9]In a separate witness statement, the claimant refers to a recent diagnosis of ADHD and contends that the Tribunal needs to determine whether the symptoms associated with that condition have a bearing on whether or not his conduct during the proceedings was intentional.

[10]I have reviewed the claimant’s psychiatric report dated 26.3.23, prepared by Dr Rostamipour, Consultant Psychiatrist. The report diagnosis ADHD with some symptoms of hyperactivity/impulsivity having been present since the claimant’s childhood. However, the report does not address at all what, if any, effect the condition would have had on the conduct of the claimant in these proceedings. The claimant was legally represented throughout the proceedings ( though he appeared for this hearing). Although the claimant contended that he had problems with listening and conveying information to his representative, that is not something that I was prepared to accept on face value given my previous credibility findings. In any event, the statement was too general to be of evidential value.

[11]I am satisfied that the matters at paragraph 7( i-iii) above amount to unreasonable conduct. No reasonable prospects of success

[12]In addition, based on the matters at 7 (i-ii) above, I find that the automatic unfair dismissal claim had no reasonable prospect of success.

[13]In all the circumstances, I am satisfied that the threshold for a costs order has been met. Should a costs order be made?

[14]It was submitted by the claimant that the respondent had not specified how the grounds relied on relate to its costs and that any increased costs were “de minimis” (his term). The case of Yerrakalva v Barnsley MBC

2012 ICR 420

makes clear that there does not have to be a direct causal link between the unreasonable conduct and the costs awarded. Rather, in exercising its discretion, the Tribunal should have regard to the nature, gravity and effect of the unreasonable conduct. I am satisfied that the claimant’s pursuit of a claim that had no reasonable prospects of success and his repeated non-compliance with case management orders resulted in additional work by the respondent which would otherwise not have been required, resulting in increased legal fees. I am satisfied that those fees were more than “de minimis”. In all the circumstances, I consider it just that a costs order should be made. How much should be awarded in costs?

[15]Rule 84 of the Rules provides that in deciding whether to make a costs order, the Tribunal may (my emphasis) have regard to the paying party’s ability to pay. To that end and as part of the directions for this hearing, the Tribunal wrote to the Claimant on 6 March 2023, asking him to provide a statement of his means with supporting documentation.

[16]Included within the list of documentation to be provided was current bank account statements for the last 12 months [90-91] The claimant provided the said statements but with the payment type and details redacted. I was therefore unable to identify where payments in were received from and to whom payments out were made. The claimant was unable to provide a satisfactory explanation for the redactions.

[17]Also requested was a breakdown of monthly income and expenditure, supported by documentary evidence. The claimant provided a document headed “Means of Income against Expenditure” which is included in the bundle at page 96. However, the day before the hearing he provided an amended copy labelled “Projected Forecast…” with the previous figures now shown as (estimated). There was no evidence to support the estimates. The document indicated an annual income of £25,068.60 and expenditure of £27,501.37, indicating a net annual deficit of £2,432.77 and a monthly deficit of £202.73.

[18]The claimant gave evidence relating to his means. That evidence was unsatisfactory. The claimant stated in evidence that the income figure of £25,068.60 was from paid employment. However, there was no evidence in the bundle about that employment such as payslips, contract documentation etc. When I asked the claimant who his employer was, his initial response was that he did not want to answer that question. However, when pushed, he reluctantly volunteered that he was employed by Islington Council as a Regulatory Assistant and had been so since January 2020. He confirmed that he would have received payslips and an offer letter and his explanation for not including these as part of his evidence as to means was that “it was a mistake”. I do not accept that evidence, it is clear from the way the evidence came out that the claimant had sought to conceal his employment.

[19]Having previously raised issues about the credibility of the claimant and given his unsatisfactory evidence at this hearing, I am not prepared to accept what he says about his means on face value. For his own reasons, the claimant has chosen not to support that evidence with documentation which should exist. In the circumstances, I have decided to disregard means in considering the amount of a costs award.

[20]The respondent seeks costs in the sum of £15,831.80 and has provided a breakdown of those costs. Although I have not taken the claimant’s means into account, I have borne in mind that costs in this jurisdiction are discretionary, are still relatively unusual and are intended to be compensatory, not punitive.

[21]In all the circumstances, I award costs to the respondent in the sum of £5000. Acting