Mr A Otulana v G4S Secure Solutions (UK) Ltd: 2306833/2023
EMPLOYMENT TRIBUNALS
Case No 2306833/2023
Between
Mr A OtulanaClaimantG4S Secure Solutions (UK) LtdRespondent
Before
Employment Judge AbbottMr J Searle (instructed by counsel) for respondentDate 21 May 2026
JUDGMENT
ON COSTS The respondent's application for a costs order under Rule 74 of the Employment Tribunal Procedure Rules 2024 succeeds. The claimant is ordered to pay the respondent the sum of £3,500 in respect of costs.
REASONS
[1]Following delivery of my oral judgment dismissing the claim on 21 May 2026, the respondent made an application for costs under Rule 74 of the Employment Tribunal Procedure Rules 2024. For full reasons given orally, I acceded to that application and made an award of £3,500 in respect of the respondent’s costs. The claimant asked for full written reasons for that decision – I have incorporated those reasons into this judgment. The respondent’s application and the claimant’s response[2]The respondent has applied for a costs order on the basis that the claimant acted unreasonably in the pursuit of the proceedings since a costs warning email sent on Friday 15 May 2026 (the end of the week prior to the final hearing commencing on Tuesday 19 May 2026) and/or because the complaints had no reasonable prospects of success.[3]The respondent’s email read as follows: Dear Mr Otulana, We write regarding your claims against G4S Secure Solutions (UK) Limited, which are listed for a Final Hearing from 19 to 22 May 2026. Following a consultation with our Counsel to review the evidence in the hearing bundle, the Respondent believes your claims have no reasonable prospect of success. Please accept this email as formal notice of a costs warning. We draw your attention to Rule 76 of the Employment Tribunals Rules of Procedure 2013. Under this rule, a Tribunal may make a costs order against a party where it considers that a claim has no reasonable prospect of success. If you proceed to the Final Hearing and your claims are dismissed, the Respondent will rely on this email when applying for a full recovery of its legal costs from you. Whilst we reserve our position on the specifics of any application made we expect to, at least, seek to recover Counsel's fees which, for information, are £5000 Brief Fee together with £1500 daily refreshers.[4]The claimant replied the same afternoon in the following terms: Dear Respondent, Thanks for your letter dated 15th May 2026. I do not agree with the Respondent assessment. I believe my claim has merit, and i have clear evidence of contradictions and procedural flaws in the Respondent case. I intend to proceed for the final hearing next week.[5]The claimant resists the application. He argues that he pursued the claim in good faith genuinely believing he had been discriminated against, harassed and victimised, and makes the point that he was a litigant in person throughout, conducted himself properly during the proceedings, and has very limited financial means (monthly take home pay of c. £1,750 pcm and debts in the region of £90k).
The law
[6]Rule 74(2) provides (insofar as relevant): The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success, […][7]In other words, there is a three-stage process. First, I must ask whether the claimant’s conduct falls within rule 74(2); if so, I must go on to determine whether it is appropriate to exercise my discretion in favour of awarding costs against the claimant; and if so, I must quantify the order (Rule 76).[8]Rule 82 provides that, in deciding both whether to make a costs order, and if so, in what amount, the Tribunal may have regard to ability to pay.[9]Costs orders in the Employment Tribunal are the exception rather than the rule: Yerrakalva v Barnsley Metropolitan Borough Council and anor [2012] ICR 420, CA at [7].[10]The Employment Appeal Tribunal discussed the approach to applications under the predecessor of Rule 74(2) (then Rule 76(1)) in Radia v Jefferies International Ltd [2020] IRLR 431. HHJ Auerbach noted at [62-63] that: The Tribunal may consider, in a given case, under (a), that a complainant acted unreasonably, in bringing, or continuing the proceedings, because they had no reasonable prospect of success, and that was something which they knew; but it may also conclude that the case crosses the threshold under (b) simply because the claims, in fact, in the Tribunal's view, had no reasonable prospect of success, even though the complainant did not realise it at the time. The test is an objective one, and therefore turns not on whether they thought they had a good case, but whether they actually did. … However, in such a case, what the party actually thought or knew, or could reasonably be expected to have appreciated, about the prospects of success, may, and usually will, be highly relevant at the second stage, of exercise of the discretion.
The Judge provided guidance at [64] as follows:
[11]This means that, in practice, where costs are sought both through the Rule 76(1)(a) and the Rule 76(1)(b) route, and the conduct said to be unreasonable under (a) is the bringing, or continuation, of claims which had no reasonable prospect of success, the key issues for overall consideration by the Tribunal will, in either case, likely be the same (though there may be other considerations, of course, in particular at the second stage). Did the complaints, in fact, have no reasonable prospect of success? If so, did the complainant in fact know or appreciate that? If not, ought they, reasonably, to have known or appreciated that?[12]Matters of causation may be relevant, per Yerrakalva at [41]: The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. [...][13]The status of the claimant as a litigant in person is a matter that the Tribunal must take into account, but is not determinative: AQ Ltd v Holden [2012] IRLR 648, EAT; Vaughan v London Borough of Lewisham [2013] IRLR 713, EAT. Discussion Stage 1: Conduct engaging Rule 74(2)?
Discussion
[14]In my judgement, Rule 74(2) is engaged on both of the bases asserted by the respondent.[15]In relation to the prospects of the complaints, viewed objectively, I do find that the allegations had no reasonable prospects of success from the outset. As I found in my main judgment, there was no evidence whatsoever to link any of the alleged conduct to the claimant’s race or to the fact he had raised allegations of discrimination.[16]Moreover, from the point of this being brought to the claimant’s attention by the respondent’s costs warning email of last Friday, I find that the claimant decision to pursue the claim to the final hearing was objectively unreasonable. A reasonable person in the claimant’s position (having sight of all of the evidence that was going to be deployed at the final hearing) would have recognised that the complaints were going to fail at the first hurdle, given the lack of the ‘something more’ beyond the bare facts of(i) a difference in status and(ii) a difference in treatment that is required to sustain a discrimination complaint (per Madarassy v Nomura International plc [2007] EWCA Civ 33). Stage 2: discretion[17]I consider the following factors to be relevant to the exercise of the discretion in this case:a. That, as I have already found, the claimant should have been aware at the time of responding to the respondent’s email on Friday of the evident flaws in his case. I am, though, prepared to accept that he did not and could not reasonably have been expected to recognise the problems in his case prior to that. Nevertheless, that email exchange is an important watershed moment.b. That the claimant was a litigant-in-person. However, a lack of legal support does not materially change what the claimant should reasonably have appreciated from what was being said in the respondent’s email of last Friday.c. The claimant’s limited financial means. I am prepared to accept that his take home income is approximately £1,750pcm, and that he has substantial debts.d. That no criticism can be levelled at the claimant for his conduct of the proceedings prior to last Friday.[18]On balance, I am satisfied that this is an appropriate case in which to exercise my discretion to make an award of costs in respect of the costs incurred by the respondent this week. Because of the claimant unreasonably refusing to take account of the evident flaws with his case, the respondent was put to the cost of attending a final hearing and 3 days of Tribunal time were needed in order to decide the claim. The claimant’s means will be accounted for at the quantification stage. Stage 3: quantification[19]The costs claimed are under £20,000, so I can make an order myself (Rule 76(1)(a)).[20]The respondent limits its claim to Counsel’s fees for attending the hearing, totalling £8,000 plus VAT. I am satisfied that the sums incurred are reasonable and proportionate.[21]In quantifying the award I will make, I need to balance the factors set out above, in particular the unreasonable approach of the claimant against the claimant’s financial means to come up with a figure that is fair and just. In my judgement, an award of £3,500 achieves an appropriate balance. It is a significant sum (amounting to 2 months of the claimant’s take home pay) that recognises the Tribunal’s disapproval of the claimant’s conduct, but makes a significant reduction from that which would otherwise be due in light of his limited financial means.[22]Although this is not a matter for the Tribunal but for enforcement, if the claimant does not consider that it is possible to pay the costs award as a lump sum, he would be well-advised to seek to agree a payment plan with the respondent as soon as possible. Approved by: