Dr H Hamoud v Spencer Private Hospitals Ltd: 2305258/2019

EMPLOYMENT TRIBUNALS

Case No 2305258/2019

Between

Dr H HamoudClaimant

Spencer Private Hospitals LtdRespondent

Before

Employment Judge Martin

Mr Maitland-Jones - Counsel for claimant

Mr Isaacs - Counsel for respondent

Date 13 May 2022

JUDGMENT

The judgment of the Tribunal is that the Claimant’s claims are unfounded and are dismissed

REASONS

[1]By a claim form presented to the Tribunal on 27 November 2019 the Claimant brings claims of direct discrimination and harassment on the protected characteristics of race, religion, and age. The Respondent defended the claims in its response presented on 10 January 2020.

[2]The Tribunal heard evidence over three days. There were some technical issues on day one so evidence was not heard then and arrangements were made for the Claimant to give evidence from the Ashford Tribunal using equipment provided by the Tribunal.

[3]On the first day and again on the second day there were some communication difficulties. The Tribunal wanted to ensure that the Claimant was able to understand and give evidence as English was not her first language, noting however that she was a consultant gynaecologist who had been working in the NHS and private practice for many years. The Claimant said she had been living in the UK for 42 years and did not need an interpreter. The issues may have been to do with sound quality over the internet as the Claimant was able to give evidence fully without any problems.

[4]For the Claimant we heard evidence from herself, her son Mr Ali Wylie and from Dr Mai Mamoud. For the Respondent I heard from Mrs Cheryl Lloyds, Mr George Tsavellas, Mrs Lynn Orrin and Mrs Diana Daw. There was a bundle of document numbered to 400, although there were about 40 more pages than this in the bundle. Some additional emails were added to the bundle on the final day from both parties.

[5]The law: Direct discrimination Section 13 provides that: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Section 23 provides that: On a comparison of cases for the purposes of section 13...there must be no material difference between the circumstances relating to each case.”

[6]In considering the claim of direct discrimination, the first task of the Tribunal is to decide whether on the primary facts as proved by the Claimant, and any appropriate inferences which can be drawn, there is sufficient evidence from which the Tribunal could (but not necessarily would) reasonably conclude that there had been unlawful discrimination.

[7]If the Claimant can prove such facts, then the burden of proof passes to the Respondent to show that what occurred to the Claimant was not to any extent because of the relevant protected characteristic as set out in the Equality Act 2010.

[8]In each case, the matter is to be determined on a balance of probabilities. The fact that a claimant has a protected characteristic and that there has been a difference in treatment by comparison with another person who does not have that characteristic will not necessarily be sufficient to establish unlawful discrimination. In all cases the task of the Tribunal is to ascertain the reasons for the treatment in question and whether it was because of the protected characteristic. The provisions of section 136 of course apply to any proceedings under the Act, and not only to claims of direct discrimination. Harassment

[9]Section 26 of the EqA provides: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. . . (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are - . . . race, religion and age

[10]A Tribunal should consider all the acts together in determining whether they might properly be regarded as harassment (Driskel –v- Peninsular Business Services Ltd

[2000] IRLR 151

, EAT and Reed and Bull Information Systems Ltd –v- Stedman

[1999] IRLR 299

, EAT).

[11]The motive or intention on behalf of the alleged harasser is irrelevant (see Driskel above).

[12]The Court of Appeal confirmed in Land Registry –v- Grant (Equality and Human Rights Commission intervening)

[2011] ICR 1390

“when assessing the effect of a remark, the context in which it is given is always highly material”.

[13]In Richmond Pharmacology –v- Dhaliwal

[2009] ICR 724

the EAT held that the Claimant must have felt or perceived his or her dignity to have been violated. The fact that a Claimant is slightly upset or mildly offended is not enough. The Tribunal’s findings of fact and conclusions

[14]The Tribunal has come to the following findings of fact and conclusions on the balance of probability having heard the evidence, read the documents and considered the submissions. Not all evidence heard will be recorded below. These reasons are confined to those matters that are relevant to the issues and necessary to explain the decision reached.

[15]The Respondent is a private hospital in East Kent. Between 2004 and 10 September the Claimant was engaged as a self-employed consultant gynaecologist. To practice at the Respondent, the Respondent must grant practicing privileges.

[16]The Claimant’s case arises because of her practicing privileges being revoked following an investigation into the circumstances of an operation carried out by the Claimant on 10 April 2019. There are two factual allegations that the Claimant raises.(a) The conduct of the meeting of 5th August 2019 and

(b) The withdrawal of privileges on 10th September 2019.

[17]In general, the facts surrounding the operation were not in dispute. The Claimant had a list of two patients both requiring laparoscopic surgery. The standard which is carried out across the country and in most of the developed world is to have at least one assistant present to hold and manipulate the camera, and if organs need to be moved out of the way, then a second assistant would be required. It was common ground that before any operation there is a ‘huddle’ when all those involved confirm their roles and that they are appropriate people to carry out those roles. The normal procedure is for the patient to be brought to the operating room after the huddle. The evidence we heard was that this type of operation is never done by the surgeon alone. The Clamant accepted that this was her normal practice.

[18]There are standards set by various bodies including the Royal College for obstetricians and Gynaecologists. One standard relates to the necessity to have assistants helping in laparoscopic procedures.

[19]On 10 April 2019 the Claimant had two patients in her evening list. The surgery was scheduled to start at 6 pm. She had arranged for Dr Mamoud to assist her. Dr Mamoud this is on a voluntary basis without pay. The afternoon surgical list overran and there was a delay in the first surgery starting. The Claimant told Dr Mamoud of this and told her to come at 7 pm and that she should carry on completing an audit that was due the next day. As it transpired the delay was shorter than expected. Dr Mamoud could not be contacted by telephone due to mobile phone coverage issues. Dr Mamoud lives on the hospital premises so could get to the operating theatre quickly. The Claimant asked for Dr Mamoud to be called to attend the operation during the operation when she was asked by staff present what her position was on having an assistant.

[20]During the pre operation huddle, the Claimant was asked if an assistant was required, and she said that one was not required for the first surgery and only for the second surgery on her list. Rather than wait for Dr Mamoud to arrive, the Claimant decided to start the operation on her own. The Claimant was manipulating two tools, one in each hand. She did not have hands free to manipulate or hold the camera. The Claimant asked the scrub nurse to hold the camera. This nurse refused as she had not been trained to hold the camera. Rather than stopping or pausing the operation, the Claimant put the camera on her shoulder, balancing it there, while she carried out the operation. The staff statements afterwards say the camera was dropped onto the patient’s abdomen at some point. This was denied by the Claimant. By the time Dr Mamoud arrived the operation was concluded. There was no harm done to the patient.

[21]Following the operation, a ‘Datix’ investigation form was completed by the Theatre Manager Ms Karen Spencer who referred to the Claimant’s “complete lack of patient safety”. At this point the Claimants practising privileges were suspended and she was invited to an investigatory meeting. There is no complaint made about the fact of the suspension. For whatever reason (this was not explained) it took until 5 August 2019 for an investigation meeting to be arranged. The Claimant was informed of the composition of the investigatory panel in advance of the meeting. For confidentiality purposes she was not provided with copies of the statements staff made following the operation. The Claimant made no objections to the composition of the panel before the meeting, and it was only at the end after Mr Farrugia had left that she complained about his presence and further involvement in the process.

[22]The Claimant’s witness statement says: “One member of the panel was Dr Martin Farrugia (MF) with whom I had a conﬂict of interest. Dr Farrugia worked in the NHS before he resigned from the NHS due to serious allegations against him before a Disciplinary hearing. He had a signiﬁcant inﬂuence from the start of the incident and as revenge he manipulated the rest of the panel and made this case look like a serious one whereas it was done successfully without harm to the patient. Further he was one of the Consultants, including myself, who were doing private gynaecological work at SPH and he obviously would beneﬁt by removing me from my private work to take over my patients”.

[23]The Claimant was not able to substantiate these allegations against Dr Farrugia. The documentation shown to the Tribunal was that he had resigned from the NHS as it would not approve a request he had made for flexible working. Mr Farrugia is the Claimant’s named comparator for her direct discrimination claims. There was no evidence that he had any issues with the NHS in relation to his clinical work. In submissions the Claimant’s representative acknowledged that Mr Farrugia did not appear to be an appropriate comparator and that the Claimant should rely on a hypothetical comparator. He did not however withdraw this part of the claim. The Tribunal find that Mr Farrugia is not an appropriate comparator. He is obviously not a person in the same circumstances as the Claimant who does not share her protected characteristics.

[24]In any event, Mr Farrugia left the meeting early, and when he had gone the Clamant said she was not happy with him being involved. Had she mentioned this earlier Ms Orrin who chaired this meeting would not have invited him. It appears that Mr Farrugia was sent the copies of the minutes after the meeting. The Tribunal is satisfied that he was not involved any further.

[25]Much was made by the Claimant’s counsel about the reliability of the evidence heard from Ms Lloyds and Ms Orrin. Ms Lloyds had originally said that she had not sent the minutes to Mr Farrugia because the Claimant had raised an objection about him. The Claimant then produced an email which showed that Mr Farrugia had in fact been copied in. This led to further disclosure by the Respondent of emails showing that he was not involved in the decision-making process. Ms Lloyds was recalled and conceded that the minutes had been sent based on the email produced. She said, and the Tribunal accepts, that her recollection after a couple of years was that she had not sent the minutes.

[26]Allegations were made in the Claimant’s evidence against Mrs Orrin. These allegations had not appeared in any documentation or any pleading or in the Claimant’s witness statement. The allegation was that Mrs Orrin had discriminated against the Claimant on the grounds of race, religion and age for three years previously. Mrs Orrin denied these allegations. Given this was not a pleaded allegation the Tribunal has not considered this any detail. The Tribunal accepts Mrs Orrin’s evidence that what the Claimant said was incorrect.

[27]Also present at the investigatory meeting was Mr George Tsavellas (Medic al Advisory Committee Chainman), Mr D Malamis (Clinical Governance Committee Chairman), Miss Hamoud (Consultant Gynaecologist) and Ms Orrin (Hospital Director) The Claimant was accompanied by her son Mr Ali Wylie and by her MDU representative, Dr Hogwood.

[28]Minutes of the meeting were produced, and the Claimant was given the opportunity to comment on them which she did by amending certain parts. Not all her amendments were accepted although they were noted.

[29]The allegations relating to this meeting are that Mr Tsavellas was “very aggressive, shouting, interrupting, and slapping on his chest”; that she was constantly interrupted and could not give her answer to questions and that she received a barrage of questions akin to an interrogation. In her witness statement the Claimant says “During the meeting some of the questions were repeated over 10 times to intimidate, harass and bully me. For example, Lynn asked me Why? 13 times (please see lines 21, 56, 85, 98(Twice), 139, 143, 147, 154, 159, 162, 208 and 211). Lynn mentioned the incident 10 times. (Please see lines 3, 5, 6, 24, 25, 128,198, 221, 275 and 309) The panel used the word assistant 52 times and Lynn used this word 15 times (please refer to lines 78, 81, 93, 115, 130, 138, 139, 143, 147, 151, 154, 159, 201, 203 and 209).”

[30]The Claimant says that Dr Mamoud was not questioned about the incident despite her giving a statement. She says the decision was pre-determined.

[31]Mr Tsavellas denied being aggressive or interrupting as the Claimant alleges. He said in the meeting and again in his evident that he was shocked and flabbergasted that this incident had happened: “I find this account shocking as I have completed major surgery using the laparoscopic technique for over 15 years and I have always required an assistant to complete this safely.” He said his concern was for patient safety and just because the Claimant had got away with it this time with the patient not being harmed did not mean it was a safe procedure. His main concern was that the Claimant did not appear to understand the seriousness of her actions and the potential for harming a patient.

[32]The Tribunal has considered the conduct of the meeting very carefully. It has read the minutes in some detail and listened to the evidence of those who were there.

[33]The Tribunal is satisfied that there was no objection to Mr Farrugia’ participation in the process prior to the investigatory meeting. This is surprising if the Claimant truly believed he had a grudge against her. However as found above he was not part of the decision-making process. The Tribunal has rejected the allegations against Mrs Orrin. There was nothing to suggest she was biased against the Claimant.

[34]Regarding the tenor of the meeting, it is always difficult to detect this from the written word alone. Therefore, reading the minutes only gives limited help. However, having read the minutes, the Tribunal does not see excessive repetition of questions, can not detect where the Claimant was prevented from answering, indeed she is shown to give full answers to most questions. Her criticisms of the repeated use of certain words are set out above is baseless. Given the nature of the allegations it is hardly surprising that the words assistant, incident and why were used several times. There was an incident, it involved her not having an assistant present and the purpose of the meeting was to establish what happened and why it happened.

[35]Had the meeting gone as the Claimant alleges, then Dr Hogwood the MDU representative would have intervened, and her son could also have intervened. However, we accept his evidence that he did not feel it was his place to intervene directly, but he could have asked Dr Hogwood to have intervened. The Tribunal has noted the note Dr Hogwood made after the meeting and her comments there. She did not come to give evidence to the Tribunal so this could not be examined further.

[36]The Tribunal has no doubt that the meeting was tense and difficult for the Claimant, and for others attending. The allegations related to patient safety and were shocking to those investigating. There is no doubt that the incident occurred. The only question was why this had happened.

[37]Even had the meeting gone as the Claimant has alleged, the Claimant would have to show the reason for this was because of her race, religion or her age. For the first time during the hearing the Claimant alleged a conspiracy by all those present to discriminate. This had not been identified in any pleading or additional information. The Tribunal does not find a conspiracy. The reason for the meeting was the incident on 10 April 2019. Had there been no incident then the meeting would not have happened. It was inevitably tense because of the nature of the allegation and the perception that the Claimant did not fully appreciate the seriousness of the incident and did not have insight into why it was wrong.

[38]It is correct that the Claimant said during this meeting that she would not again do a laparoscopic operation without an assistant being present. Taken in isolation this would be appropriate. However, during the meeting the Claimant said on more than one occasion that she felt the technique she used was safe because she was a skilled surgeon. In answer to questions asked by the Judge the Claimant said that she had not balanced the camera on her shoulder in an actual operation before, but that she had practiced this in the past. She then said that this practice amounted to one time thing it out at a training session some years previously. The Tribunal is not medically trained however this does appear to be very limited practice.

[39]Despite saying she would not do this again, she said in answer to a question about whether she agreed what she did was wrong and would she do this again, the minutes record her saying “If there was a risk to the patient I would not do this again. The assistant was late. I did not know the scrub nurse could not hold the camera”. She went on to say, “If I considered there to be a risk, I would have stopped”. “It is not safe if you do not know what you are doing”.

[40]Having read the minutes in detail, the Tribunal accepts the view taken that the Claimant had been equivocal in her answers. On the one hand she was saying she would not do it again but on the other hand said would not do it if she thought there was a risk. There was discussion in the meeting which is minuted about not knowing if there was a risk until the operation had begun.

[41]Counsel has suggested that the Claimant’s command of English may have been a problem. This was something discussed at the start of the hearing. However, once the technical issues had been resolved, the Claimant was able to communicate clearly and articulately. She did not have difficulty understanding the questions being put to her.

[42]In relation to Mr Tsavellas’s involvement. The Tribunal can see that there was a part of the meeting when he was actively involved. The minutes show that after this he took much less of an active part with Mr Malamis asking most of the questions. There was no pleaded allegation against Mr Malamis.

[43]It was suggested that it was insulting and impolite for Mr Tsavellas to suggest (either by question or statement) that the Claimant had not used an assistant to save money (the Consultant pays for the assistant). The Claimant says that it was a statement and the minutes show this. The minutes are not a transcript, and as previously said, it is difficult to establish the tenor of the meeting from them. The Tribunal is not therefore able to say if this was said as a statement or a question. It was something that Mr Tsavellas was thinking about, so it was legitimate to put this to the Claimant.

[44]Even if the Tribunal had found the meeting to be as the Claimant described it, the Tribunal can not find any link to her protected characteristics of race, religion, or age. Even if Mr Farrugia had a grudge against the Claimant, it appears this was not related to her race, religion or age. In any event there is no complaint about his behaviour or line of questions during the meeting. We do not find that Mr Tsavellas or Mrs Orrin acted in a discriminatory manner. We appreciate that discrimination is unlikely to be obvious. However, here the Claimant had undertaken an operation in clear breach of recognised standards in not having an assistant present to operate the camera. The Tribunal is satisfied that this is the reason why the meeting happened as it did. The Tribunal rejects the suggestion of any conspiracy.

[45]The second issue is the sanction applied, namely removing the Claimant’s privilege to operate. This is a sanction which is provided for in the Consultants Handbook: “Privileges will automatically cease if a clinician’s registration with the GMC lapses or is removed. The Hospital Director / Registered Manager shall, in any event, be entitled to terminate, suspend or otherwise vary admitting privileges upon three months written notice at any time. The Hospital expects all clinicians to fully comply with the duties of a doctor registered with the General Medical Council: “Patients must be able to trust doctors with their lives and wellbeing. To justify that trust we, as a profession, have a duty to maintain a good standard of practice and care and to show respect for human life.” “

[46]The Tribunal is satisfied that the Respondent had genuine concerns about the Claimant’s actions and insight. The Tribunal does not find the decision to remove privileges to be tainted by discrimination. The letter removing privileges was clear as to the reasons: “This decision has been taken after consideration of the evidence presented, and due to our remaining concerns relating to patient safety it is a decision that is supported by our Clinical Governance Lead, Mr D Malamis and the Chairman of our Medical Advisory Committee, Mr G Tsavellas in line with SPH Policy on Practicing Privileges.”

[47]There is no pleaded complaint about the appeal. However, for chronological completeness this is dealt with briefly. The Claimant appealed. The appeal was originally dealt with on the papers and refused. The Claimant asked for an inperson appeal meeting. This was granted. At the meeting, the Claimant withdrew her grounds of appeal instead substituting them with and appeal against the severity of the sanction only. There was no mention of discrimination in her grounds of appeal or at the appeal hearing. Her appeal was dismissed.

[48]This case is not about the fairness of the decision reached or the processes leading to that decision. It is about whether the Respondent discriminated on the grounds of race, religion or age. Mr Maitland-Jones conceded in submissions that the Claimant’s claim for age discrimination was weak. He said it was obvious what the Claimant’s race was and her religion as she wore a hajib. However, this is not sufficient to found a claim for discrimination. There must be something more than a difference in treatment and having a protected characteristic to prove a claim of discrimination.

[1]This was a hearing to consider an application for costs made by the Respondent on 26 June 2022, following the judgment of the Tribunal, dismissing the Claimant’s complaints of race discrimination, age discrimination, sex discrimination and discrimination on the grounds of religion and belief. The application was made against the Claimant personally and her former representative.

[2]The parties were given notice of the hearing and directions were given including that the Claimant and her representative should provide evidence of their ability to pay and that if they did not, then the Tribunal would assume they had the means to pay any costs award made. No such representations were made.

[3]The Respondent stated that it was seeking a detailed assessment of costs to be carried out by an Employment Judge. The Tribunal considered first whether the threshold for the making of a costs order had been made and if it had the Tribunal would issue directions for a detailed assessment of costs to be heard later. It had been hoped to deliver judgment orally on the last day of the hearing, however the Judge was unwell and unable to do this.

[4]The Tribunal had before it various documents including: a) the Respondent’s application for costs b) the Respondent’s second application for costs c) the Claimant’s written response d) the Claimant’s witness statement (read by the Tribunal but no live evidence heard) e) the Claimant’s former representative’s written response f) witness statement of Mr Piera (read by the Tribunal but no live evidence heard) g) a bundle of documents – Key Documents h) a bundle of correspondence documents

The hearing

[5]The hearing was listed for two days to allow time for Tribunal deliberation. At the start of the hearing, the Tribunal did not have all the documents. The Respondent agreed to email the Tribunal with the bundle of documents. The first attempt failed as the email was bounced back as the attachment was too large. The Respondent then sent a link to access the document which did not work. A second link was sent and again the Tribunal could not access the bundle. In the end the Respondent split the bundle and it was sent in four sections. This took time to do, and meant that submissions were delayed until 2 pm. The Respondent’s applications for costs

[6]The Respondent made five applications for costs. The Respondent withdrew number four following discussion at the start of the hearing. The applications are set out below as set out in the cost’s applications.

[7]The first application for costs is against the Claimant on the following grounds:a. That the Claimant has conducted the proceedings in an abusive, vexatious and/or unreasonable manner (Rule 76(1)(a)).

b. That bringing a claim for age discrimination was unreasonable and/or had no reasonable prospect of success (Rule 76(1)(b)).

c. Bringing claims for direct discrimination was unreasonable and/or had no reasonable prospect of success (Rule 76(1)(b)); and

d. Relying on Martin Farrugia as an actual or appropriate comparator was unreasonable and/or had no reasonable prospect of success (Rule 76(1)(b)).

[8]The second application for costs is made against the Claimant’s Representative in accordance with 76(1)(a) ET Rules, on the ground that:a. The Claimant’s Legal Representative has conducted the proceedings in an abusive vexatious and/or unreasonable manner (Rule 76 (1)(a)).

b. That bringing a claim for age discrimination was unreasonable and/or had no reasonable prospect of success (Rule 76(1)(b)).

c. Bringing claims for direct discrimination was unreasonable and/or had no reasonable prospect of success (Rule 76(1)(b)); and

d. Relying on Martin Farrugia as an actual or appropriate comparator was unreasonable and/or had no reasonable prospect of success (Rule 76(1)(b)).

[9]The third application for wasted costs is made against the Claimant’s Representative in accordance with Rule 80(1)(a) on the ground that: a. The Claimant’s Representative has acted improperly, unreasonably, or negligently in conducting these proceedings.

[10]The application noted that: The Claimant’s Legal Representative Firm is on the Tribunal’s record as Harding Mitchell Solicitors, of DX34005 Tooting North. However, the Claimant’s Legal Representative has also held himself out at the firm, Fadiga & Co of 29-30 Abbey Parade, Merton High Street, London, SW19 1DG. This application is therefore made against all firms held out to represent the Claimant.

[11]There was a second letter with applications number four and five dated 6 January 2023. The fourth application (withdrawn)

[13]The fifth application is for the payment to compensate the additional costs the Respondent has incurred due to the Claimant’s legal representatives conduct, under rule 78(1)(a) of the ET Rules. The Claimant’s representative acted vexatiously, abusively, disruptively, and unreasonably contrary to Rule 76(1)(a) of the ET Rules throughout proceedings relation to the Costs Application. In the alternative the Respondent submits that he Claimant’s legal representative conduct in these proceedings has been improper, unreasonable and/or negligent for the reasons set out below and pursuant to Rule 80(1) an order of wasted costs should be made against the Claimant’s representative.

[14]The application went on to detail the areas that the Respondent said were in issue. Submissions

[15]All parties provided written submissions which were read by the Tribunal which were amplified by oral submissions. The Tribunal emphasises that this not intended to be a comprehensive recital of everything written and said but summaries of the submissions made. The Respondent’s submissions

[16]The Respondent supplemented its written submissions as summarised below. The first application

[17]The Respondent’s written submission focuses on the age discrimination claim and Mr Farrugia being cited as a comparator and that the Claimant alleged that he was instrumental in the decision to remove practicing privileges. It is said that this claim had no reasonable prospect of success. The written submissions refer to the costs warning letters which are discussed in more detail in the conclusions below.

[18]The Respondent submitted that the Claimant did not provide full particulars of the claim such that it could fully understand her pleaded case and referred to correspondence it wrote about this. It is said that on 28 December 2019 the Claimant said in an open letter that she would withdraw her claim if they reinstated her practicing privileges. It is suggested that this shows that the Claimant in pursuing her claims was acting vexatiously and cynically to overturn the decision to remove the privileges.

[19]It was submitted that the Claimant’s age discrimination and harassment claims were not properly particularised. It was pointed out the Claimant’s own Counsel confirmed in his closing submissions that he did not consider the Claimant had been discriminated or harassed due to her age and that Mr Farrugia was not an appropriate comparator. The Respondent submitted that all the Claimant’s claims failed and had no reasonable prospect of success. She additionally conducted her claim in an abusive, vexatious, disruptive, and unreasonable manner by continuing with unmerited claims and in the way she pursued the claims as set out in the second application.

[20]The Respondent spoke to the written submissions and submitted that the Claimant never believed that she was discriminated against and that all her claims were found to be unfounded, so the Respondent was asking for full payment of its costs from the outset relying on McPherson v B&P Paribas (London Branch)

[2004] EWCA Civ 569

[21]The Respondent referred to the Claimant’s application for reconsideration following the final judgment where the Claimant accused the Tribunal of preferential treatment to the Respondent, said the Tribunal was biased across the whole case, accuses Respondent witnesses of lying under oath and so on. It was submitted that this letter provides evidence of motivation of the Claimant’s motivation when bringing her claims so is relevant in considering the totality. The second application

[22]This application related to additional costs the Respondent incurred due to the Claimant’s legal representatives conduct. It was submitted that the correspondence relating to costs warnings showed the Claimant’s representative consistently acted improperly, unreasonably, and negligently in the way it handled the Claimant’s case. This included behaviour and conduct throughout the proceedings, conduct at the preliminary hearing on 12 May 2021 and in preparation for the final hearing.

[23]In relation to the preliminary hearing listed for 12 May 2021 it was said that the conduct complained of was the Claimant requesting a postponement of the hearing on the basis that preferred Counsel was not available and the Claimant was not available. The application for a postponement said that the Claimant needed eight weeks notice of a hearing to arrange her surgical lists to be able to attend. There was no response to this application until the day before the hearing when it was refused. The hearing went ahead, and Mr Pieria attended on behalf of the Claimant without the Claimant being there. It was submitted that he had not prepared for the hearing and made another application to postpone at the start of the hearing notwithstanding his application had already been refused. The postponement request was refused, and the hearing went ahead.

[24]It was submitted that this behaviour both before and during the preliminary hearing was completely disruptive and unreasonable and led the Respondent to incur further unnecessary costs in handling it. It was said to be unacceptable for a further application to postpone to be made once the first application was refused.

[25]In relation to the preparation for the final hearing, it was submitted that the Claimant’s conduct in relation to exchange of witness statements was unreasonable. The Respondent sent the Claimant its final index to the bundle to seek approval of the documents put into it. This was sent on 7 April 2022. The deadline for service of the bundle was 8 April 2022. The Claimant did not respond and therefore the Respondent served its bundle electronically on 8 April 2022.

[26]The Respondent asked for a short extension of time to exchange witness statements as certain witnesses were away and there was a change in the lead solicitor handling the case. The Claimant rejected this. The Respondent, despite the difficulties that had led to this request, did get its witness statements ready to exchange. On 12 April 2022, which was the date of exchange, the Respondent contacted the Claimant to confirm a time for exchange of statements. They did not receive a reply so sent an email that evening (at 17.45) asking the Claimant to confirm that witness statements could be exchanged at 12 noon the following day.

[27]The Claimant representative then sent at email at 20.01 saying he had not received the bundle and needed a further four days to complete the witness statements. He demanded the bundle by return. Rather than waiting until the next day when the Respondent solicitors would be in the office he sent an email to the Tribunal saying that the Respondent had failed to comply with the order to serve the final bundle. It was submitted this was unreasonable and put the Respondent to additional costs to defend this untrue allegation. When witness statements were exchanged only one was signed.

[28]The Claimant’s witness statement contained without prejudice matters and evidence in relation to claims that had not been allowed to be added and go forward. The Respondent made an application to the Tribunal that a different Employment Judge to the one hearing the case made a ruling about the offending parts of the statement. This was not possible, so it had to be dealt with at the start of the hearing when the Tribunal ordered the Claimant to produce a revised redacted statement removing the offending parts. After an adjournment, the Claimant had not done this and therefore the Tribunal had to proceed on the basis that it would ignore the offending parts and that no evidence should be given about them. Notwithstanding this direction the Claimant referred to this evidence in her cross examination.

[29]The Respondent referred to telephone communication with the Respondent’s representative which it described Mr Pieria as being vexatious, unreasonable, and abusive. This was in relation to communications about the delivery of the bundle. The Respondent’s position is that it sent the Claimant the bundle by different forms and for each got a read receipt showing it had been delivered. It said the Claimant’s representative stance on the bundle was unreasonable.

[30]The Respondent submitted that the Claimant’s representative knew the Claimant’s claim had no reasonable prospect of success and pointed out that the Claimant was unsuccessful in all her claims despite having been represented for most of the proceedings. The third application

[31]The Respondent repeated its submissions in relation to the second application and submitted that the Claimant’s legal representative’s conduct in the proceedings has been improper, unreasonable and/or negligent referring to paragraphs 20 to 34 of its submissions and submitted that a wasted costs order should be made against the Claimant’s representative. The fifth application

[32]This application was to compensate for the additional costs the Respondent incurred due to the Claimant’s representative’s conduct in dealing with the Respondent’s costs application. This relates to the Claimant’s representative writing to the Tribunal on 7 September advising that they had just become aware of the application and requesting a copy of it together with a request to extend time for a response. They wrote again on 16 September 2022 saying they still did not have the application. The Respondent sent a further copy of the application on 23 September 2022 and received confirmation it was successfully delivered. The Claimant then wrote to the Tribunal again on 28 September saying they had not received a copy of the application asking for a further extension of time. The Respondent submitted it had sent the Claimant’s representative a copy of its application at the time it was first sent to the Tribunal.

[33]The Respondent wrote twice to the Tribunal on 30 September 2022 and on 3 October 2022 saying that the application had been properly served on 23 September 2022. On 4 October it wrote to the Tribunal saying no response had been received to the application and objected to any extension of time for one to be served pointing out that this behaviour was indicative of the conduct the Respondent had been subjected to throughout the proceedings which was one of the reasons for the cost’s application being made.

[34]The Claimant asked the Respondent on 4 October 2022 to send the application by One Drive. This was done on 11 October 2022. On 12 October 2022, the Claimant’s representative wrote to the Tribunal again saying he did not have the application. The Tribunal gave an extension of time to 26 October 2022. On that date the Claimant’s representative asked for a further extension until 11 November 2022, on the basis that neither the Claimant or her representative had received the emails sent by both the Respondent and the Tribunal. The Claimant wrote to the Tribunal on 31 October 2022 saying she had been abroad and would respond to the application as soon as she could.

[35]A further extension of time to 30 November 2022 was requested by the Claimant’s representative on 17 November 2022 as Counsels opinion was wanted to be obtained. That request was refused by the Tribunal.

[36]On 24 November 2022, the Respondent was contacted by the Claimant’s representative who said that he had not received a copy of the bundle attached to the application. The Respondent resent it the same day. The Claimant’s representative’s response was provided on 28 November 2022.

[37]The Respondent submitted that the behaviour set out in the other applications continued and was improper, unreasonable, and negligent. The Claimant’s former representatives’ submissions

[38]Mr Kohanzed made oral submissions on behalf of the Claimant’s former representative in addition to written submissions. The first application was not directed to his client. The second and third applications

[39]It was submitted that this application relating to no reasonable prospect of success focussed on the use of Mr Farrugia as a comparator and refers to costs warnings which also suggest that the age discrimination claim was misconceived because it relied on Mr Farrugia as a comparator. There is also criticism for failure to particularise matters in relation to Mr Farrugia.

[40]It was conceded that Mr Farrugia was not a statutory comparator, but he may well have been an evidential comparator (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

). It was submitted it was quite common for a Claimant to identify the wrong comparator and that appeal courts can and do identify different comparators as the litigation moves through the courts. Reference was made to paragraph 23 of the liability judgment and that it was easy to see that Mr Farrugia was not an appropriate comparator. It was submitted that this was not something that should have exercised the Respondent or increased costs as it was so clear that Mr Farrugia was not an appropriate comparator. In any event the Claimant relied on a hypothetical comparator as an alternative.

[41]It was submitted in the written submissions that the Respondent’s application does not identify why the remainder of the discrimination claims were misconceived. Mr Kohanzed submitted that even after hearing the Respondent’s oral submissions (in which Ms Scriven was invited by Mr Kohanzed to expand on this aspect of the application) there was still no identification as to why the remainder of the discrimination claims were misconceived.

[42]It was said that it was a mistake not to have withdrawn Mr Farrugia as a comparator but that did not mean the claim was misconceived in that a hypothetical comparator was also being used and the Respondent would always have to defend the claim whether Mr Farrugia remained as a comparator. This was one part of a larger claim. It was submitted that if the Tribunal were to consider it unreasonable for the Claimant not to have withdrawn Mr Farrugia as a comparator, then it should not exercise its discretion to award costs particularly not of the whole litigation.

[43]It was submitted that the claims were properly particularised.

[44]In relation to the preliminary hearing in May 2021, it was submitted that it was reasonable to apply for a postponement on the grounds of Counsel’s unavailability even if a judge does not grant a postponement. The hearing was listed on 21 April 2021 with the hearing on 12 May 2021. This did not leave much time before the hearing, and it was reasonable for the Claimant wanting to have her preferred barrister at that hearing. The unavailability of Counsel is sometimes a good reason to postpone a hearing. It was not unreasonable to repeat that application at the hearing. The refusal of the postponement was not made until 11 May 2021 the day before the hearing despite the application being made within days of the notice of the hearing date being sent out no doubt due to lack of judicial resources.

[45]The failure to provide a signed witness statement did not hinder the hearing in that it went ahead. It is recognised that it may not have gone as smoothly as it may have done but it was concluded on the day. There was therefore no additional costs associated with the application to amend.

[46]Mr Pereira explained that he was not ready for the hearing because the Claimant was not present (part of the hearing was to consider whether the Claimant had presented her claims in time, so her evidence was necessary) because she was unable to take leave because of her surgical lists at short notice. She needed eight weeks notice. In the event Employment Judge Nash allowed the Claimant’s claims of race, age, and religious discrimination claims to go ahead together with associated harassment claims.

[47]In relation to the issues relating to bundles and exchange of witness statements it was submitted that the delay of six days to exchange witness statements was not a lot and a costs application relating to this was absurd. The reason is the difficulty that the Claimant’s representative had in receiving emails with attachments and he notified the Respondent of these problems. The Respondent did not challenge this at the time. The Claimant’s representative, not having received the bundle assumed that the exchange of witness statements would therefore be delayed pending receipt of the bundle. Once the bundle was received the witness statements were dealt with promptly.

[48]The Claimant’s representative accepts that without prejudice matters and matters relating to claims that were not allowed to proceed should not have been put in the witness statement. However, it was submitted that there were no costs associated with this conduct, even if considered to be unreasonable.

[49]In oral submissions Mr Kohanzed referred to Attorney General v Barker, [2000] F.L.R 795 in which Lord Bingham held that the notion of vexatiousness is specific to where a party uses legal proceedings to harass and inconvenience the other party and this is not the same as unreasonable conduct. It was submitted that what happened in this case came nowhere near this.

[50]Mr Kohanzed said that he was at a loss to understand how the aspect of the claims being misconceived was being put by the Respondent. The Respondent did not expand on this during its submissions despite saying that it would. There is no analysis of the evidence other than the comparator point.

[51]It was accepted that a costs warning does not have to be given for an award of costs to be made but it is useful if it was submitted early. The costs warnings were however poorly drafter and not fully articulated i.e., it is explained why the party would lose. This was a pre-requisite if relying on a costs warning letter. The costs warning letters gave no detail of why the claim was misconceived.

[52]It was submitted that it was difficult on face of it to be awarded costs for the claim being misconceived, as turns on mindset of decision maker. The Respondent’s submission about the Claimant’s offer to withdraw proceedings if her practicing privileges were restored was rejected on the basis that she wanted to get back to work at the Respondent and there was no suggestion it was suggested out of spite or an intention to harass.

[53]In relation to the Claimant’s letter requesting a reconsideration of the judgment it was submitted that it was common for a dissatisfied Claimant to consider unfairness in the process. She was merely expressing dissatisfaction about the decision. This is not unreasonable.

[54]It was submitted that the Respondent made unmeritorious applications for strike out against a party who was unrepresented at the time when it applied for the claim to be struck out on the basis that the Claimant had used the wrong name for the Respondent. This happens often.

[55]Mr Kohanzed pointed out the difficulties the Tribunal had in accessing a bundle of documents sent by the Respondent at the start of this hearing. This reflects the difficulties the Claimant’s representative was having in receiving documents. He suggested that the delivery receipts did not show that the documents could be accessed as they said that delivery was complete but that no delivery notification was sent by the recipient’s server.

[56]Finally, it was submitted that the Claimant’s application to amend her claim was not unreasonable. It was submitted that when preparing further and better particular is it not uncommon for other heads of claim to come to light. What happened here is that some amendments were allowed, and some were not. This happens on a regular basis in the Employment Tribunals. The Claimant’s submissions

[57]In addition to written submissions Mr Wareing on behalf of the Claimant made oral submissions which are summarised below:

[58]Only the first application was relevant to the Claimant personally the others being directed to her former representative. It was submitted that costs awards in the Employment Tribunal are the exception rather than the rule.

[59]Reference was made to Wentworth-Wood v Maritime Transport Ltd

UKEAT/0184/17

which emphasised the exceptional nature of an award of costs and the need to consider whether the specific conduct is improper, or unreasonable or, negligent.

[60]It was submitted that the Claimant’s witness statement explains that as a lay person she took advice regarding her case, its content, and the manner of its presentation from her solicitor and counsel as she was entitled to do. She maintained her claim was soundly based and had reasonable prospects of success having been guided by the advice given to her. It can not be unreasonable to bring a claim when the legal advice was that she had a good case.

[61]Mr Wareing referred to there being two preliminary hearing and that in neither did the Tribunal strike out the claims of its own volition as it was entitled to do. Further the Respondent having made an application to strike out the claim then withdrew that application the inference being that the Respondent had accepted that the claims were not misconceived, and they had some substance that required challenge and that by extension they did not believe the Claimant to have acted or to be acting unreasonably.

[62]Reference was made to Ridehalgh v Horsfield

(1994) Ch 205

which said: “Unreasonable’ also means what it has been understood to mean in this context for at least half a century. ‘Unreasonable’ aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently.” Therefore, simply because the Claimant lost her case does not mean she acted unreasonably.

[63]A competent employment lawyer would swiftly have realised that Mr Farrugia was not an appropriate comparator and in any event the Claimant was also relying on a hypothetical comparator.

[64]It was submitted that the Respondent has failed to make a causal connection between assertions of unreasonable conduct and the costs they say were incurred because of that conduct. Mr Wareing referred to the Wentworth-Wood v Maritime Transport Ltd case in which it was held that this “particular conduct caused the opposing party unnecessary costs.” It was submitted that the Respondent has not shown this necessary causal link.

[65]Further it was said that to suggest that ignoring costs warnings is evidence of unreasonableness or vexatious pursuit was incorrect. It was submitted that the costs warnings were an attempt to frighten and intimidate the Claimant. The Claimant said in her witness statement that she saw them as threats. The Respondent does not make out in its costs warnings that the Claimant’s case was doomed to failure. The warning letters were incompetently drafted with no proper reasons and amount simply to threats rather than a proper costs warning. The Claimant was strong enough to resit such threats which made her a person of reasonable fortitude.

[66]In relation to the suggestion that the Claimant’s offer to withdraw her claim if the Respondent reinstated her practicing privileges was evidence of unreasonable conduct is misplaced. Mr Wareing agreed with Mr Kohanzed that such behaviour was usual if all she wanted was to go back to work at the Respondent. It was not unreasonable it was normal human behaviour. It is not a reason to award costs against her. He also agreed with Mr Kohanzed that the costs warning letters were not well drafted and should not be relied on to found a costs award. The Tribunal’s conclusions

[67]As a starting point, the Tribunal accepts that costs do not follow the event in this jurisdiction and are still relatively unusual. Where they are awarded they are intended to be compensatory, not punitive.

[68]The Tribunal has considered the parties’ submissions both written and oral, together with the various documents and witness statements before it. It has also had regard to the relevant authorities and the general approach to be taken in costs cases. Finally, it has had regard to the overriding objective to deal with cases justly. The first application

[69]When considering whether the Claimant’s claim was misconceived, the Tribunal considered the case of Scott v Commissioners of Inland Revenue

[2004] ICR 1401

in which Sedley LJ held that the relevant question in considering whether the pursuit, or defence, of a claim was misconceived was not whether the party in question thought they were right but whether they had reasonable grounds for so thinking.

[70]The Claimant’s practicing privileges were removed by the Respondent because of an incident during an operation when, in breach of national guidelines and normal practice, the Claimant did laparoscopic surgery without an assistant balancing the camera on her shoulder. The assistant would have managed the camera whilst the surgeon used both hands to manipulate the surgical equipment. The full details of the incident are set out in the liability judgment. In essence the Tribunal asked itself why the Claimant’s privileges had been revoked. The answer was not difficult to discern. It was because of the seriousness of the incident and patient safety.

[71]The Claimant’s claim is that the reason for the privileges being removed was discrimination on the grounds of race, religion or belief, age, and sex. The Claimant was unable to provide facts from which the Tribunal could conclude that discrimination was the reason the privileges were revoked. She cited an actual comparator, Mr Farrugia, however her own counsel in submissions conceded he was not an appropriate comparator. She did not address the characteristics of any hypothetical comparator.

[72]This is not the reason that the Tribunal has decided that a costs award is appropriate. The Tribunal accepts the arguments put forward by both the Claimant and her former representative that this is not enough to say the claim was misconceived. It is something the Tribunal dealt with succinctly and quickly in the judgment. It should not have troubled the Respondent who immediately identified that Mr Farrugia was not an appropriate comparator.

[73]The most telling document which explains the Claimant’s thinking is her application for reconsideration of the judgment hearing. This was referred to by the Respondent as indicating her vexatiousness and unreasonableness. We do not agree with this interpretation instead preferring the interpretation given by the Claimant and her representative. The Claimant was entitled to apply for a reconsideration and express her views on the robustness of the decision made. That she is critical of the Tribunal is unimportant. What the Tribunal considered was the part where the Claimant (who put in the application personally) wrote: “I think that the unfair dismissal point is to be reconsidered very carefully as if there is no specific reason to explain the unfair dismissal from my position then it should be assumed that I was treated unfairly due to the discrimination of protected characteristics”.

[74]The reference to unfair dismissal is a reference to the Claimant’s practicing privileges being removed as there is no unfair dismissal claim before the Tribunal. This gives insight into the Claimant’s thinking. She says here that there is “no specific reason to explain the unfair dismissal from my position” which ignores the specific reason given by the Respondent namely her actions during the operation coupled with her inability to recognise the seriousness of the incident or satisfy the Respondent that she would not do the same again. This was clearly set out as the reason for the removal of her privileges and the reason found by the Tribunal. As the Tribunal pointed out in its liability judgment, simply having a protected characteristic and there being what is perceived to be unfair treatment is not sufficient for a claim of discrimination. There is not an automatic assumption that discrimination has occurred. A reasonable person would understand why the practicing privileges had been removed.

[75]The judgment concluded that the Claimant did not establish a prima facie case in relation to any of her claims and her assertions were not supported by the evidence.

[76]The Tribunal does not find it significant that the Respondent made an application to strike out the Claimant’s claims on the basis that they had no reasonable prospect of success and later chose not to purse that application or to pursue a deposit order. This was a decision that the Respondent was entitled to make. It is rare that a discrimination case would be struck out at a preliminary hearing and the Respondent appears to have taken a pragmatic and commercial view about continuing with its application.

[77]Similarly, the submission that the claim was not misconceived in that the Tribunal did not at two preliminary hearings strike out the claim of its own volition, is rejected. It is very unusual that a discrimination claim is struck out at a preliminary hearing, and something discouraged by the appellate courts.

[78]Whilst costs warning letters are not a necessity in an application for costs, they are an important factor to consider. The Tribunal studied the correspondence relied on by the Respondent in its submissions. These start from an early stage in the proceedings, 20 December 2019. The Claimant presented her claim herself but at some point early on appears to have been represented by Dr Lord. Harding and Mitchell were instructed by the Claimant in June 2020 after the first preliminary hearing had taken place.

[79]Mr Kohanzed for Harding and Mitchell and Mr Wareing for the Claimant discount these letters as being mere threats without the necessary detail to explain why it believes the Claimant’s claims would fail. The Tribunal considered these letters carefully. The Respondent set out in its submissions the letters it relies on.

[80]The Claimant presented her claim on 27 November 2018. On 20 December 2019 the Respondent wrote to the Claimant’s then representative Dr Lord: “It is clear from the documents that Miss Hamoud’s claims lack any merit and that Miss Hamoud will not be successful in pursuing such claims through to a full hearing. As you are aware, our client considered Miss Hamoud’s appeals and all aspects of the case when determining the incident as serious and removing her practising privileges. Our client treats all of its employees equally and strongly denies that the Claimant has been subject to any form of discrimination. It is our view that Miss Hamoud’s claims have no reasonable prospect of success and are misconceived. Whilst we believe the Claimant’s claim will fail our client is concerned that costs will have to be incurred to defend its position. Accordingly, we are instructed to request that Miss Hamoud withdraws her claims by 31 December 2019, before our client proceeds to defend the claims at the Tribunal and incur costs. If, however, Miss Hamoud does not withdraw her claims by this date, our client will instruct us to pursue Miss Hamoud for the recovery of our client’s legal costs. We reserve the right to draw the Employment Judge’s attention to this correspondence when seeking recovery of our client’s legal costs from Miss Hamoud.”

[81]This letter is discounted by the Claimant and the Claimant’s representative as being poorly drafted and lacking in detail. Whilst this letter is short, it sets out the essential elements as to why the Respondent believed the Claimant’s claim was misconceived. It says that the Respondent considered the incident as serious. It is pointing to the reason for the revocation of the Claimant’s practicing privileges. Whilst more detail could have been included, it sets out the salient element, namely the incident was serious.

[82]The next letter is dated 24 July 2020. This is headed “Without Prejudice and Save as to Costs”. It refers to open letters dated 8 and 24 July 2020. The Tribunal has therefore considered these three items of correspondence together. The main thrust of the without prejudice letter is in relation to an application the Claimant had made to amend her claims. This was described as “misguided” and it was pointed out that they were significantly out of time.

[83]The application to amend the claim, followed a preliminary hearing on 1 April 2020, which was held by telephone because of the pandemic. The Claimant represented herself at this hearing. The Claimant was ordered to provide further and better particulars of her claim and was told that this was not an invitation to expand on the claims she had already brought but to better articulate the claims she had already brought. In her further and better particulars, she included matters not pleaded and the application to amend was made. The Respondent set out in detail why it considered the Claimant’s application would not be successful. The letter said that if the Claimant continued with the applications the Respondent would be seeking costs against her.

[84]Within this letter is a heading “Cost Warning” This also relates to the application to amend rather than the case more generally. In the event, what happened is that the hearing was eventually heard on 12 May 2021 (it was postponed in November 2020 due to lack of judicial resources) and the Claimant was permitted to add race discrimination to her claim. Other amendments applied for were dismissed. Further matters arising out of this hearing are dealt with elsewhere in this judgment.

[85]The open letters dated 8 July 2020 and 24 July 2020 on the other hand, were written to the Employment Tribunal. The one dated 8 July 2020 referred to the application to amend and the Claimant’s application for reconsideration of the case management orders made by Judge Harrington. The Respondent quite reasonably pointed out that the latter application was misconceived as there is no provision for reconsideration of orders. Other than this, it only deals with the merits or otherwise of her application to amend. The letter says: “We contend Claimant’s applications for the reasons outlined below. They are misconceived, not particularised at all, and insufficiently justified….. Should the Claimant not withdraw this application, we anticipate a further Preliminary Hearing will be required. For the avoidance of doubt, we reserve the right to seek costs against the Claimant with regard to its application.” It is a long and detailed letter running to four pages.

[86]The letter dated 24 July 2020 is also four pages long. This letter addresses the further and better particulars provided by the Claimant dated 11 July 2020 pointing out that they lacked particularity and included previously un-pleaded new allegations. The key discrepancies were set out in some detail. It was pointed out that whilst religion and belief was ticked on the ET1 the facts pleaded did not reference or allude to this. The letter criticises the comparators cited by the Claimant as the named comparators were mentioned but there was no detail of why they were appropriate comparators. It was pointed out that there was no detail as to the race or religion or age of the Claimant. These comments were in relation to the Claimant’s proposed amendments only and not to her case more generally.

[87]The letter concluded: “The Claimant has produced acts which are lacking in substance, detail and clarity. The Respondent needs to understand the claims pleaded and what it is defending. Understanding the claim against it is a fundamental tenet of ensuring the Respondent is on an equal footing and avoiding prejudice to the Respondent, in addition to being able to manage the case and keep costs to a minimum. We anticipate the Judge will now require a further Preliminary Hearing to understand the Claimant’s pleadings. For the avoidance of doubt, we reserve the right to seek costs against the Claimant.” This letter does not say that the claims were misconceived as such.

[88]The next letter relied on is dated 2 September 2020 and is also an email to the Tribunal. This referred to the Claimant’s representatives’ letter to the Tribunal of 3 August 2020. The reason for the Respondent’s email is that the letter sent by the Claimant’s representative referred to without prejudice correspondence. It was said that “Such correspondence is continuing to incur the Respondent unnecessary and additional costs. We reserve the right to seek costs against the Claimant and wasted costs against the Firm.”

[89]The final document relied on is an email chain between the Respondent’s solicitor and the Claimant’s solicitor starting on 2 November 2020. This was in anticipation of the preliminary hearing which had originally been listed in November 2020. There was discussion about witness statements and what they needed to include given that by then, the Respondent had withdrawn its application to strike out the Claimant’s claims. An email sent to the Claimant stated: “Please take note that we are taking instructions and intend to seek costs incurred as a result of your client’s application for reconsideration of the Tribunal’s Judgment dated 9 April 2020 (described by the Tribunal as “misconceived”) and application and withdrawal of the holiday pay claim without explanation.”

[90]The Tribunal assumes that all correspondence between the solicitors was copied to the Claimant so that she was appraised of what the Respondent were saying. There was nothing to suggest that she had not been provided with them.

[91]The Tribunal accepts the submissions made by the Claimant and the Claimant’s representative that the costs warning letters relate to specific applications, the comparator point and preparation for the preliminary hearing. What they do not say is set out that the claims were misconceived and precisely why the Respondent was of that view. However, the first letter addressed to Dr Lord did say that the Claimant’s claims were misconceived. This is the only letter that says this. The other correspondence relates to various applications made by the Claimant.

[92]As conceded by the Claimant and the Claimant’s representative, there is no requirement that a costs warning letter is sent for a costs order to be made. In some circumstances it is obvious that the claim is misconceived, and this is, in the Tribunal’s opinion one of those cases. The Tribunal is satisfied that the claim was misconceived and that the Claimant’s decision to pursue it to the end amounted to unreasonable conduct. It was abundantly clear what the reason for the removal of practicing privileges was. It was clear it was to do with patient safety and breach of national guidelines about how to conduct this type of operation. We have taken account of the case of Scott v Commissioners of Inland Revenue [2004]. The Claimant is convinced that she did nothing wrong or what she did was a minor matter given that the patient was not harmed. That is not the test. The test is not whether the Claimant thought she was right, but whether she had reasonable grounds for so thinking. The Tribunal finds that she had no such reasonable grounds given the circumstances of the operation and the potential harm to patient safety.

[93]We heard during the liability hearing about the national guidelines for laparoscopic surgery; we heard of the potential impact on patient safety if the guidelines were not observed. It was good that the patient was not harmed but that was not the point. It was clear that the investigation panel were shocked by what they heard. That panel comprised senior consultants in gynaecology with extensive experience of this type of surgery. The Tribunal is not medically trained; however, it was obvious to it that to hold a camera on a shoulder when doing the surgery rather than having an assistant present to operate the camera as the guidelines state is what should be done, would be unsafe or have the potential to be unsafe. There are reasons why guidelines of this type are issued.

[94]It was also made clear that it was not only that the Claimant had done the operation as she had, but that she did not give them confidence that she would not do it again. That is reinforced by her application for reconsideration referred to earlier, where she said that there was no substantive reason for removing her practicing privileges. This means she still did not consider what she did what wrong or potentially unsafe. This coupled with the Claimant’s witness statement produced for this hearing further emphasises her view. She says: “In comparison, they removed me from the practice because of a simple mistake in my not waiting for my planned assistant to arrive in theatre, before undertaking a fairly routine Laparoscopic procedure, which was ultimately successful and which caused no harm to the patient.”

[95]The Tribunal is satisfied that a reasonable person would understand that the reason that the Claimant’s practicing privileges were removed was because of her conduct during the laparoscopic operation and find that the threshold for a costs order against the Claimant has been met. As stated, the Tribunal has not taken the Claimant’s means into account in assessing the threshold test as no evidence of her means was provided.

[96]The Tribunal was referred to Marler v Robertson

[1974] ICR 72

, NIRC which said: 'Ordinary experience of life frequently teaches us that which is plain for all to see once the dust of battle has subsided was far from clear to the combatants once they took up arms'.

[97]The Tribunal does not find this to be the case here. The reason for the removal of practicing privileges for the Claimant was clear from the outset. It was the way she conducted the operation in breach of national guidelines which had serious implications for patient safety coupled with her not recognising the seriousness of the situation or providing reassurance that such an event would not happen again.

[98]The Tribunal finds that the threshold test for costs to be awarded against the Claimant has been met. The Claimant’s claims had no reasonable prospect of success and were misconceived. Applications against the Claimant’s representative

[99]The Claimant’s representative came on record in June 2020. Therefore, any consideration of the merits of the Claimant’s claims is from that date rather than their inception.

[100]The applications against the Claimant’s representative are two-fold. That the claims were misconceived and should not have been continued and the way the Claimant’s representative conducted the case.

[101]The Tribunal is mindful that when considering whether to make a wasted costs order, a three-stage test should be applied1:(i) Has the legal representative of whom complaint was made acted improperly, unreasonably, or negligently?

(ii) If so, did such conduct cause the applicant to incur unnecessary costs?

(iii) If so, is it, in all the circumstances, just to order the legal representative to compensate the applicant for the whole or part of the relevant costs?

[102]It was not suggested that the Claimant’s representative acted improperly i.e., engaged in conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty.

[103]'Unreasonable' in this context describes conduct, which is vexatious, designed to harass the other side rather than advance the resolution of the case. The Tribunal will look to the explanation given for the conduct complained about.

[104]It has been held that the term 'negligent' should be understood in an untechnical way to indicate failure to act with the competence reasonably to be expected of ordinary members of the profession using the same test as in a negligence case.

[105]We have jurisdiction to make a wasted costs order only where the improper, unreasonable, or negligent conduct complained of has caused a waste of costs and only to the extent of such wasted costs. Demonstration of a causal link is essential. Given that legal professional privilege has not been waived we do not know what advice was given to the Claimant2. It may have been that advice was given about the strength of her case that she chose to ignore. The Tribunal considered what the Claimant may have done had her representative removed itself from the record as acting for her. Given the stance taken by the Claimant in the letter applying for reconsideration of the judgment, which is referred to earlier in this decision, the Tribunal takes the view that the Claimant would have continued with her claim in person or with other legal representation, if her representative had refused to act further. Therefore, the costs would have been incurred in any event. 1 Ridehalgh v Horsefield

2 Medcalf v Mardell

[106]The Tribunal is also mindful that wasted costs must be approached with care and that from the point of view of the Claimant’s representative in this case, the jurisdiction is penal and such an order should only be made as a last resort. 3

[107]Taking all this into account the Tribunal is not minded to make a wasted costs order or any other costs order against the Claimant’s representative.

[108]The Respondent has also complained that the way the Claimant’s representative conducted the proceedings should give rise to wasted costs. The Tribunal accepts that there were some issues with the exchange of witness statements and preparation for the preliminary hearing in May 2021. However, the Tribunal takes note of the difficulties it had in accessing documents sent by the Respondent and therefore this lends some credence to what the Claimant’s representative submitted about the difficulties he had accessing documents and emails. It is commonplace that there is some slippage in the execution of Tribunal orders. The Tribunal notes that the delay in exchanging witness statements was only some six days. Whilst it would have caused inconvenience to the Respondent it is not something that would attract an order of costs of any kind.

[109]Similarly, the issues surrounding the preliminary hearing heard in May 2021 do not attract costs. The application for a postponement was made promptly when the notice of hearing was sent to the parties. It was not dealt with until the day before the hearing due no doubt to lack of judicial resource. The time between the notice of hearing and the hearing date was only about three weeks which is unusual. The Tribunal accepts that until a request for a postponement is granted the parties should assume that the hearing is going ahead. The hearing did go ahead even if it did not go as smoothly as it would have if the Claimant’s representative had been fully prepared. There was no increase in costs for the Respondent save for a letter objecting to the postponement request.

[110]The Tribunal rejects the application for wasted costs in relation to the main hearing. For the same reasons it rejects the application for ordinary costs in relation to the main hearing.

[111]The Tribunal also dismisses the application for costs in relation to this costs hearing against the Claimant’s former representative. Detailed assessment of costs 3 Ridehalgh v Horsefield

[1994] Ch 205

[1994] 3 WLR 462

[112]The Tribunal notes that the schedule prepared by the Respondent amounts to £99,482.82. The Employment Tribunal will do a detailed assessment of the Respondent’s costs on a standard basis. Separate orders are made in relation to the preparation for this. Given the costs warning sent at a very early stage in the proceedings, costs shall be awarded for the whole of the case.