Mr. C. S. GohClaimantAsda Stores limitedRespondent
Before
Employment Judge SudraDate 26 September 2025
JUDGMENT
ON COSTS The Respondent’s application for a Costs Order under Rule 74 is well founded. A Costs Order is made for part of the Respondent’s overall costs and the Claimant is ordered to pay the Respondent’s costs in the sum of £4,992.00p.
REASONS
[1]I made a decision following the Respondent’s costs application made at the conclusion of the Interim Relief application Preliminary Hearing heard today.[2]The application was made under rule 74(2)(a) of the Employment Tribunal Procedure Rules 2024 (the ‘Rules’). Rule 74 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 having 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,.[4]I had before me:(i) The Respondent’s costs warning letter to the Claimant dated 17th September 2025; and(ii) the Respondent’s schedule of costs. Issues
Background
[5]The Claimant presented his ET1 claim form on 5th September 2025 within which the Claimant made an application for interim relief under s.128 Employment Rights Act 1996 (‘ERA’).[6]On 17th September 2025 the Respondent wrote to the Claimant (on a Without Prejudice basis) stating, inter alia, that he had failed to detail any alleged protected disclosures and that it was readily apparent from the claimant’s outcome of dismissal that the dismissal was solely or principally due to ill-health capability and thus, his application for Interim Relief was misconceived and bound to fail.[7]The Respondent stated that if the Claimant withdrew his Interim relief application before 5.00pm on 19th September 2025, it would not pursue its legal fees if the application failed for the reasons the Respondent had set out in the letter. The Claimant failed to respond to this letter.[8]The Claimant’s Interim Relief application was refused by me today and full reasons are contained in my Judgment which has been promulgated to the parties.[9]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 Has the Threshold for a Costs Order Been Met? Unreasonable Conduct[10]There were two aspects to this ground:(i) The Respondent contended that it was unreasonable for the Claimant to pursue his Interim Relief, as he had failed to set out the alleged protected disclosures relied upon;(ii) It was unreasonable of the Claimant not to respond to the Respondent’s letter of 17th September 2025 or even address the deficiencies in his application which had been brought to his attention by the Respondent.[11]I am satisfied that the matters at paragraphs 8(i-ii) (supra) amount to unreasonable conduct by the Claimant. Should a Costs Order be Made?[12]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?[13]Rule 82 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, I asked the Claimant about his means and he stated that his monthly income was circa £1,900.00p, he had savings of approximately £5,000.00p, bitcoins to the value of £4,000.00p and that his monthly expenditure was around £2,000.00p.[14]The Respondent seeks costs in the sum of £15,102.00p and has provided a breakdown of those costs. I have 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.[15]It was apparent from the Claimant’s ET1 and particulars of Claim that a claim for Interim Relief was a non-starter. The Claimant had not identified any alleged protected disclosures or when they were made, to whom, how, and what information was disclosed. I considered that in the specific circumstances, it would be reasonable to award the respondent its costs incurred after 19th September 2025.[16]In all the circumstances, I award costs to the Respondent in the sum of £4,992.00p.
The Law
[17]By s.230 ERA, an employee is someone who has entered into or works under (or where the employment has ceased, worked under) a contract of employment. A contract of employment is defined as a contract of service or apprenticeship.[18]Dismissal, for the purposes of a complaint of unfair dismissal, is defined at s.95 ERA: ‘95 Circumstances in which an employee is dismissed. (1)For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only if)— (a)the contract under which he is employed is terminated by the employer (whether with or without notice), (b)he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or (c)the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.’[19]In Williams v. Michelle Brown AM UKEAT/0044/19/OO at [9], HHJ Auerbach summarised the five issues, which a Tribunal is required to decide in relation to whether something amounts to a qualifying disclosure: ‘It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the Page 3 of 7 disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.’ (My emphasis). 9. In order for a qualifying disclosure to be a protected disclosure it must be made in accordance with s.43C to 43H ERA. 10. The ‘reason’ or ‘reasons’ for dismissal is/are the factor(s) operating on the decisionmaker’s mind which causes him/her to take the dismissal decision (Croydon Health Services NHS Trust v. Beatt [2017] ICR 1420). In some circumstances, the net could be cast wider than the person who made the decision to dismiss, such as where the facts known to, or beliefs held by, the decision-maker have been manipulated by another person (Royal Mail Ltd v. Jhuti [2019] UKSC 5 and explained further in Kong v. Gulf International Bank (UK) Limited EA-2020-000357- JOJ). Interim Relief 11. SS.128 to 130 ERA make provision for interim relief. This is a remedy for (certain types of) unfair dismissal. It is worth setting out s.128 in full and part of s.129 ERA: ‘128 Interim relief pending determination of complaint. (1)An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and— (a)that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i)section…. 103A… may apply to the tribunal for interim relief. (2)The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date). (3)The tribunal shall determine the application for interim relief as soon as practicable after receiving the application. (4)The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing. (5)The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so. 129 Procedure on hearing of application and making of order. (1)This section applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— (a)that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— Page 4 of 7 (i)section…. 103A, or […] (2)The tribunal shall announce its findings and explain to both parties (if present)— (a)what powers the tribunal may exercise on the application, and (b)in what circumstances it will exercise them. (3)The tribunal shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint— (a)to reinstate the employee (that is, to treat him in all respects as if he had not been dismissed), or (b)if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.’ 12. Rule 95 provides that the hearing should be conducted as a Preliminary Hearing within Rules 53 to 56. The proper approach is as follows (Parsons v. Airplus UKEAT/0023/16/JOJ4 March 2016 at para [8]): ‘On hearing an application under section 128 the Employment Judge is required to make a summary assessment on the basis of the material then before her of whether the Claimant has a pretty good chance of succeeding on the relevant claim. The Judge is not required (and would be wrong to attempt) to make a summary determination of the claim itself. In giving reasons for her decision, it is sufficient for the Judge to indicate the “essential gist of her reasoning”: this is because the Judge is not making a final judgment and her decision will inevitably be based to an extent on impression and therefore not susceptible to detailed reasoning; and because, as far as possible, it is better not say anything which might pre-judge the final determination on the merits.’13. Interim relief should be ordered only if it appears that it is likely that on determining the complaint the Tribunal will find that the reason or principal reason for the dismissal was a proscribed ground: s.129 ERA. There is judicial guidance on the meaning of ‘likely’ in this context: 1.1. A “pretty good chance of success”: Taplin v. C Shippam Ltd [1978] IRLR 450 [23]; Wollenberg v. Global Gaming Ventures (Leeds) Ltd (UKEAT/0053/18)); 1.2. “something nearer to certainty than mere probability”: Ministry of Justice v. Sarfraz [2011] IRLR 562 at [19]; and 1.3. a “good arguable case” is not enough: Parsons v. Airplus UKEAT/0 023/16/JOJ 4 March 2016.14. The hurdle which the Claimant must clear is set relatively high. There is good reason for this. As the EAT noted in Dandpat v. University of Bath UKEAT/0408/09, 10 November 2009 unreported: Page 5 of 7 ‘20. … We do in fact see good reasons of policy for setting the test comparatively high, in the way in which this Tribunal did, in the case of applications for interim relief. If relief is granted the respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the claimant, until the conclusion of proceedings: that is not [a] consequence that should be imposed lightly’.15. The Tribunal cannot be criticised for concluding that matters are not sufficiently clear cut at the interim relief stage for it to have sufficient confidence in the eventual outcome to grant interim relief: Parsons at [18]. Discussions and Conclusions16. For the purposes of this Hearing, the issue is whether under s.129 ERA it appears that it is likely that the reason for the dismissal is was making a protected disclosure as per s. 43B ERA. In order to determine ‘whether it is likely’ the Claimant will succeed at a full hearing the EAT said in London City Airport v. Chacko 2013 ILR 610, that this requires the Tribunal to carry out an ‘expeditious summary assessment’ as to how the matter appears on the material available, doing the best it can with the untested evidence advanced by each party. Clearly this involves less detailed scrutiny than will be undertaken at the full final hearing.17. ‘Likelihood’ has been interpreted to mean ‘a pretty good chance of success’ at the full hearing - Taplin. The burden of proof was intended to be greater than that at a full hearing, where the Tribunal only needs to be satisfied on the balance of probabilities that the Claimant has made out his or her case - or 51% or better. A pretty good chance is something nearer to certainty than mere probability.18. A factor I have taken into account is that the Claimant has failed in his ET1 claim form and attached Particulars of Claim to set out what alleged protected disclosures he has made. The Claimant has made sweeping statements of the Respondent being ‘in breach’ of various policies but has not pleaded what disclosures he made in respect of the alleged breaches, to whom, how and when. The Claimant states several times that he has made ‘whistleblowing claims’ but provides no further detail. The closest the Claimant gets is his statement that, ‘4. Asda is not addressing to my safety in the workplace after so many emails to them throughout the years. They can't pretend there were no whistleblowing issues in my disclosures at that time of my grievance complaints to the management. My safety and my life is at risk.It was only lately that I brought up the whistleblowing claim to the employment tribunal in my ET 1 claim dated 15/1/2024 the very first time. They need to get their house in order and to protect me.Asda needs to talk to me about the whistleblowing concerns before anything else. They are hiding from the truth. The tribunal was the one who clearly stated in the case management order of 8/1/2024 that Asda is in breached of their whistleblowing policy.It was new to me from the beginning of the incident of 19/6/2020.I don't even know the word 'whistleblowing' and 'detriment'until later on.I do sincerely believed Asda wasn't following their disciplinary and grievances procedures in my complaint at that time.My duty was to report an incident at work and my disclosure was to report on Asda wrongdoings and cover ups and lies in Page 6 of 7 the workplace.I'm helping Asda and I need my protection and my safety in the workplace.I believe Asda violates and is in breached of the health and safety acts for failing to protect me until this moment in time and I'm signed off sick for work related stress from my doctors. My life is also at risk if everything is out in the open.’ 19. In his submissions today, the Claimant said that ‘my dismissal is to do with my medical report.’ I conclude that the Claimant has not satisfied that burden (which is a very difficult one to surmount). He has not convinced me that his claim for being dismissed for making a protected disclosure is nearer to certain, rather than a possibility. He has not demonstrated at this very early stage in the proceedings, that it is likely his claim will succeed at a full hearing, nor that it has a pretty good chance of success.[20]I am mindful of the fact that the complexity of a claim is not sufficient reason to conclude it does not have pretty good chances of success, In Raja v. Secretary of State for Justice UKEAT/0364/09, the EAT criticised an Employment Judge's decision that interim relief orders should only be made in connection with simple factual disputes.[21]These are not matters that I can, based on the evidence currently available, assess in such a way as to enable me to conclude that the Claimant has a pretty good chance of success.[22]For these reasons the application is refused.