Mr A Algedawy v ABM Aviation UK Ltd: 2402350/2023 and 2403109/2023
JUDGMENT
[1]The claim for unfair dismissal is struck out because the manner in which the proceedings have been conducted was unreasonable and the claimant had not complied with the orders of the Tribunal made at/following the hearing on 17 May 2023.[2]The application to strike out the claim for discrimination on the grounds of religion is refused.[3]A costs order is made against the claimant in the amount of £1,000. The claimant must pay that sum to the respondent.REASONS
[1]The claimant was engaged by the respondent as a sales consultant or causal worker. It was not disputed that he was engaged between 17 September 2022 and 30 October 2022. The claimant alleged that he was employed from 28 July 2018 when he says he undertook a shadow shift (the respondent denied that he did) until 31 October 2022. The claimant claims unfair dismissal and direct discrimination because of religion. Claims and Issues[2]This was a preliminary hearing arranged to consider whether the claimant had the two years continuous service with the respondent required to pursue his unfair dismissal claim, and for case management purposes. The respondent also made an application to strike out the claim.[3]A preliminary hearing (case management) was previously conducted in this case on 17 May 2023 by Employment Judge Martin and the case management order which she produced following the hearing contained case management orders for the preparation of the case for this hearing (and clarification of the religious discrimination claim).[4]After the decision was made in the strike out application, the respondent also applied for costs. The decision in the costs application is also included in this order.Procedure
[5]The claimant represented himself at the hearing. Mr O’Neill represented the respondent.[6]The hearing was conducted in-person.[7]The respondent provided a bundle of documents. The respondent also provided a witness statement for a witness called to address the service issue in the unfair dismissal claim. That witness attended the hearing.[8]The respondent had made an application to strike out the claim in a letter of 5 July 2023. That application was considered at the start of the hearing. The respondent was given the opportunity to make submissions, followed by the claimant being given the same opportunity. After submissions had been made, I informed the parties of my decision and (briefly) the reasons for it. Those reasons are confirmed below.[9]After the decision in the respondent’s strike out application, the respondent made an application for costs. The respondent had warned the claimant in an email of 31 August that a costs application would be made (and had provided a schedule of costs which had been included in the bundle of documents). The respondent was given the opportunity to explain why it believed that a costs order should be made, and the claimant was given the opportunity to respond. Both parties were also allowed to make further comments arising from the other party’s submissions. After hearing submissions, I adjourn the hearing to consider my decision. After the adjournment I informed the parties of my decision in the application for costs and the reasons for it. Those reasons are also confirmed below. The application to strike out[10]In summary, the claimant’s position was that he had worked a single shadow shift on 28 July 2018, and he contended that he had remained employed from that date until October 2022. The respondent denied that the claimant had worked the shadow shift, although it agreed that one had been offered to him in July 2018. The respondent acknowledged that the claimant had been engaged to work shifts from 17 September 2022 until 30 October 2022. The issue in dispute was whether or not the claimant had continuity of employment from July 2018 until October 2022, being a period during which he undertook no work for the respondent. If he had continuity for the entire period, he was able to pursue an unfair dismissal claim. If he only had continuity for a short period in later 2022, he would not be able to claim unfair dismissal as he would not have the two years’ service required for such a claim.[11]The respondent made an application to strike out the claim in a letter of 5 July 2023. That application was considered at the start of the hearing. The respondent was given the opportunity to make submissions, followed by the claimant being given the same opportunity.[12]The case management order made following the hearing on 17 May 2023 had set out various steps which were required for the case to be prepared for this hearing:a. The parties had each been ordered to send to the other a list, together with copies, of all documents relevant to the issue to be determined today. The claimant had never complied with this order. He had sent a video which showed extracts from some emails. He had not listed the emails. He had not provided copies of the emails. He wished to rely upon those emails at today’s hearing and he said they were relevant. He had not brought copies with him, so neither the respondent nor I had copies of the emails which the claimant said were relevant.b. The parties had been required to each send to the other copies of witness statements prepared for today’s hearing on or before 5 July 2023. At approximately 9 am this morning the claimant had provided a witness statement to the Tribunal and the respondent. The respondent had copied it and had included it in the bundle it produced. The respondent’s representative had not had the opportunity to consider the statement.c. By 21 June 2023 the claimant had been required to send the respondent further information about his complaint of discrimination on the grounds of religion. He had not done so on that date. He had provided a document on 1 August and said that there had previously been an issue with it being sent by email.[13]The respondent applied to strike out the entire claim on the basis that the manner in which the claimant had conducted proceedings had been scandalous and/or unreasonable, and/or for non-compliance with the Tribunal’s orders. The respondent contended that a fair hearing today was not possible.[14]The claimant had no real explanation for the lack of compliance and/or late compliance with orders, save that he highlighted how busy he had been working six days a week and he emphasised that he was not legally represented.[15]After hearing the submissions of the parties, I decided that: the claim for unfair dismissal should be struck out; but the claims for discrimination on grounds of religion should not be. I briefly explained the reasons for my decision in the hearing and those reasons are confirmed below.[16]I have the power to strike out the claim (or parts of the claim) under rules 37(1)(b) and 37(1)(c) of the Employment Tribunal Rules of Procedure 2013. It was for the respondent to persuade me to exercise my discretion to strike out the complaint. Non-compliance needs to be deliberate and persistent or have the effect of making a fair hearing impossible. Even then, I needed to be persuaded that striking out was a proportionate sanction. I must consider all the circumstances, including the magnitude of the default, whether it is the responsibility of the party, what disruption, unfairness or prejudice had been caused, whether a fair hearing was still possible, and/or whether strike-out or some lesser remedy would be an appropriate response.[17]The claimant had not complied with the Tribunal’s orders (as I have set out). I found that his conduct in preparing for this hearing had been unreasonable. He had only provided his witness statement at 9 am this morning; far too late for the respondent to prepare for the hearing. He had sent a video showing that he had relevant documents and he confirmed that he had relevant documents upon which he wished to rely today, but those documents had not been provided to the respondent. They were not available today for me to consider. They had never been listed, as the order required. It was my decision that a fair hearing today of the issue to be determined in the unfair dismissal claim (continuity of service), was not possible, as the respondent had not had time to prepare after receipt of the claimant’s witness statement and the relevant documents in the claimant’s possession or control were not available to me. I also decided that it was appropriate and in accordance with the overriding objective including dealing with cases fairly and justly, for the unfair dismissal claim to be struck out.[18]The position for the discrimination claim was different. Today’s hearing had not been arranged to determine an issue in that claim. It was my view that the respondent’s application to strike out the entire claim because of the claimant’s conduct of proceedings did have some merit. However, I was mindful that the guidance in appeal cases was that I should consider particularly carefully before I struck out a discrimination claim. A fair hearing of the discrimination claim remained possible if the claimant complied with future directions. It was my decision that it was not appropriate in all the circumstances, applying the overriding objective and considering the proportionality of the sanction, for the discrimination claims to be struck out. The costs application[19]In the bundle of documents provided, the respondent had included a schedule of costs, which recorded the solicitors’ costs incurred in the proceedings. It recorded each time entry made by someone at the solicitors’ firm acting for the respondent. The schedule showed total time of 29 hours and six minutes recorded and costs of £5,523. The rates for the work charged to the respondent were confirmed in submissions and were not unreasonable. The schedule did not include attendance at the Tribunal today.[20]The respondent was not seeking to recover all of its costs. It sought to recover £2,450 based upon the costs which had been incurred since 15 June 2023.[21]The respondent sought costs on the basis that it said the claimant had acted vexatiously, disruptively, or otherwise unreasonably in the way in which the proceedings had been conducted (particularly in relation to the steps in preparation for this hearing), that the claimant had been in breach of the orders, and/or that the claim for unfair dismissal had had no reasonable prospects of success.[22]In relation to the application for costs arising from the conduct of proceedings, the respondent’s representative emphasised what I had already found when the unfair dismissal claim had been struck out (as recorded above).[23]In relation to the contention that the claim for unfair dismissal had had no reasonable prospects of success, he emphasised the implausibility of the claimant’s argument that he had two years continuous service when linking a shadow shift in July 2018 (even if one had been worked, which the respondent did not accept) with shifts worked in September and October 2020. He emphasised an email in the bundle from July 2021 when the claimant was asked to provide his basic ID documents, something which it was contended was entirely inconsistent with continuous employment dated from 2018.[24]The respondent submitted that all of the costs incurred in preparing for this hearing had been wasted, either because of the claimant’s conduct of proceedings (and non-compliance with orders) or because the claimant’s argument in the issues to be determined today had never had any reasonable prospects of success.[25]When he made his submissions, the claimant was asked about his ability to pay a costs award. He said that he earned £1,700 per month and worked six days a week. He referred to family responsibilities. He said he had worked three jobs at a time. He said he could not afford to pay £2,450 if the costs sought were awarded. He declined to say by whom he was currently employed. He confirmed that he was currently working a single job.[26]The respondent’s representative questioned the accuracy of the claimant’s figures, highlighting the hourly rate which would apply if the claimant’s earnings figure was correct, and he was working full time six days per week. The respondent also emphasised that, whether the ability to pay was taken into account, was not obligatory.[27]Costs in the Employment Tribunal are very much the exception and not the rule. Costs do not simply follow the event. The power to award costs is limited to the specific reasons provided in the Employment Tribunals Rules of Procedure.[28]Rules 74, 75, 76, 78 and 84 of the Rules of procedure are relevant to the award of costs. Rule 76 (1) A Tribunal may make a costs order …, and shall consider whether to do so, where it considers that - (a) a party … has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success...(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction Rule 78 (1) A costs order may - (a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party. Rule 84. In deciding whether to make a costs ... order, and if so in what amount, the Tribunal may have regard to the paying party’s … ability to pay.[29]Also relevant is the costs section of the Employment Tribunals (England & Wales) Presidential Guidance – General Case Management. I considered that Guidance and would highlight the first lines of paragraphs 1 and 19: The basic principle is that employment tribunals do not order one party to pay the costs which the other party has incurred in bringing or defending a claim. When considering the amount of an order, information about a person’s ability to pay may be considered, but the Tribunal may make a substantial order even where a person has no means of payment.[30]I must look at the whole picture of what happened in the case and 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. There does not have to be a precise causal link between the unreasonable conduct in question and the specific costs being claimed. Causation is relevant.[31]As I have already explained when providing my reasons for striking out the unfair dismissal claim, and for the same reasons, I found that the way in which the claimant had conducted the proceedings in respect of today’s hearing was unreasonable. He did not comply with the orders made by Employment Judge Martin. He had attended the hearing without relevant documents and without them having been sent to the respondent. He had only provided his witness statement at approximately 9 am this morning.[32]I also accepted the respondent’s submission that the claimant’s argument that he had two years continuous employment with the respondent based upon a single shadow shift in 2018, when he had undertaken no work for the respondent until September 2022, had no reasonable prospects of success.[33]Whether I should award costs is, however, a discretionary decision and is an exception and not the rule. I would not have exercised my discretion to award costs based on the prospects of success of the claimant’s argument about continuity. In the Employment Tribunal we see many unrepresented claimants pursue arguments which do not turn out to have had much prospect of succeeding and I would not have awarded costs on that basis in this case based on the weakness of his argument about continuity.[34]I have taken a different view about awarding costs for the claimant’s unreasonable conduct of the proceedings and his failure to comply with the orders made. I have considered the claimant’s approach of providing a video showing emails which he says were relevant, but not providing copies of the emails themselves. I have also considered his decision to provide a witness statement only at 9 am this morning and not earlier. I have decided that costs should be awarded as a result. It has not been possible to hear today, the issue which today’s hearing was listed to determine. I have struck out the unfair dismissal claim for that reason and I have also decided that it is appropriate to award costs as a result.[35]The respondent has sought costs of £2,450, being costs incurred since 15 June 2022. I have no criticism of the respondent for the level of the costs, or the amount claimed.[36]However, I do not think that the claimant should be ordered to pay the full costs claimed. As I have awarded costs for the manner in which the proceedings have been conducted and not the prospects, I do not find that all of the costs claimed were incurred as a result.[37]I have also considered it appropriate to take into account in making an award the claimant’s ability to pay. Whilst I understand the respondent’s representative’s scepticism about the earnings figure I have been given today by the claimant, the claimant is clearly not somebody who has significant disposable income available.[38]Taking account of the two reasons I have given, I have decided I will not awarded the full costs claimed. I have considered the best way of determining the right costs award. I have decided to take an approach which is not scientific and might be described as rough and ready, that is I have not carefully calculated a specific amount based upon specific time entries and the reasons for them. I have broadly noted the costs incurred in the very recent period since 25 August. I accept that almost all of the respondent’s preparation for today’s hearing has ultimately turned out to be unnecessary as a result of the claimant’s conduct of the proceedings. I have decided to make a costs award of £1,000, as I consider that to be an appropriate award taking into account the costs incurred, the unreasonable conduct, and the claimant’s ability to pay. That sum must be paid by the claimant to the respondent as a result of my costs order.Background
[39]EJ Porter provided an explanation of the conduct of the proceedings, including the giving of evidence, the conduct of the cross-examination and re-examination. EJ Porter indicated that the claimant would give evidence first, followed by the respondent’s witnesses. EJ Porter asked the claimant if he had any questions about the procedure. The claimant indicated that he did not.Evidence
[40]The claimant gave evidence. During the course of giving his answers in cross-examination the claimant began to raise matters which were not relevant to the question. EJ Porter explained that the claimant would be able to raise any relevant matters arising from the crossexamination, and/or provide clarification on any matters arising, during re-examination. The claimant was provided with pen and paper to enable him to make a note of any such matters during the course of his crossexamination.[41]An agreed bundle of documents was presented.[42]The claimant started to give his evidence at 2:50 pm on the first day of the hearing. The hearing finished at 4:30pm. The claimant was in the middle of cross-examination. The usual warning was given to the claimant that he should not discuss his evidence over the break. It was ordered that the hearing continue at 10am the following day. Second day of the hearing[43]A the commencement of the second day of the hearing the claimant made application that the hearing of the claim be adjourned to a different panel on the grounds that this panel was prejudiced. In support of his application the claimant provided an email which raised the following concerns: 43.1. Presence of Mr. PJ Liyanage . It has come to my attention that Mr. PJ Liyanage, who is no longer employed by the Respondent as of September 15, 2021, is present in the courtroom. Mr Liyanage left the Respondent’s employment and moved to a different company at the same airport in a similar position after 7.5 years of service. Despite this, he was present at this hearing, and I have concerns that his presence may create a conflict of interest or a perception of bias. I respectfully question whether his continued presencein this hearing is my right to a fair and impartial trial under Article 6 of the European Convention on Human Rights. I raised this concern in court on 14/10/2024, and the judge responded that Mr. Liyanage was permitted to be present. However, I remain concerned that this decision may compromise the fairness of these proceedings. 43.2. Unknown Individual Shadowing the Respondent’s Solicitor Additionally, there is a woman present in the courtroom who has been observed shadowing the Respondent’s solicitor. She has not introduced herself, and her role has not been clarified. This lack of transparency raises significant concerns about the integrity of these proceedings. I respectfully request that the court clarify the identity and role of this individual to uphold transparency and fairness. 43.3. Another Woman Accompanying Mr. PJ Liyanage. Furthermore, there was another woman observed sitting with Mr. PJ Liyanage in the courtroom. Her identity and connection to this case have not been explained. Again, I believe this lack of clarity may impact the impartiality of the trial. I respectfully request that the court clarify her role and the reason for her presence in the courtroom.[44]EJ Porter explained that: 44.1. the presence of Mr Liyanage had been explained the previous day. He was a witness of the respondent. A witness statement had been provided to the claimant. The claimant has raised no valid objection to the attendance of Mr Liyanage; 44.2. the tribunal was provided with an attendance sheet that indicated that the person sitting next to the respondent solicitor was Mrs S Kauser, a witness of the respondent. A witness statement had been provided to the claimant. The claimant had not, at the commencement of the hearing, questioned with the tribunal who Mrs Kauser was. Again, she was a witness who was entitled to be present; 44.3. the attendance sheet provided to the tribunal indicated that there was an observer, who remained seated at the rear of the tribunal during the course of the hearing. The tribunal is an open hearing. Any member of the public can attend the hearing. The tribunal does not question the attendance of any observer to the hearing.[45]The claimant confirmed that he pursued his application for an adjournment and for the case to be heard before a different panel on the grounds that this panel was prejudiced. When asked for further details of the alleged prejudice the claimant asserted that he had nothing more to say.[46]Solicitor for the respondent objected to the application asserting that: 46.1. the claimant has provided no explanation as to why he believes that the panel is prejudiced against him. There is no basis upon which to make this application, which is a waste of time and costs; 46.2. the presence of Mr Liyanage was explained yesterday; 46.3. this is an open hearing. Any member of the public can attend. In fact, the observer in the room is the daughter of Mrs Kauser who has an interest in observing legal proceedings. She has taken no part in the proceedings; 46.4. It is difficult to see how a new panel would provide a fair hearing for the claimant. This is just a case of the claimant objecting because his case is not going well.[47]EJ Porter asked the claimant whether, in light of the explanation provided, he was prepared to continue with the hearing before this panel. EJ Porter suggested that an adjustment could be made whereby Mr. Liyanage be excluded from the hearing while the claimant continued giving his evidence. The claimant rejected that suggestion, asserting that he did not know that this was an open hearing, that this had not been a fair trial.The relevant law
[48]In considering the claimant’s application the tribunal took note of the House of Lords’ judgment in Porter v Magill 2002 2AC 357 HL, where it was noted that the concept of impartiality required not only that the court or tribunal be truly independent and free from actual bias ,but also that it must not appear in the objective sense to lack these essential qualities : it must also be free from apparent bias. In order to establish whether there was apparent bias in any case, the court or tribunal must consider whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased. The hypothetical observer need not apprehend that bias actually existed, nor even that it was ‘likely’ or ‘probable’, only that there was a risk that was more than minimal. Determination of the claimant’s application for the tribunal to recuse itself and the claim be adjourned to be heard before a different panel[49]The tribunal rejects the application on the grounds that the claimant makes a bare assertion that the tribunal is prejudiced against him without any explanation of how the tribunal is said to have displayed such prejudice. The claimant objects to the attendance of the respondent’s witnesses and the observer. He has rejected the suggestion that, for the continuation of his evidence, Mr Liyonage be excluded from the hearing. The claimant did not, on the first day of the hearing, say that his ability to give evidence was adversely affected by the presence of the witnesses and/or the observer. Prior to the claimant commencing his evidence EJ Porter explained the procedure to be adopted, explained that he would be given the opportunity to cross-examine each of the respondent’s witnesses. When asked the claimant said that he had no questions about the procedure. The claimant did not at any time seek clarification of the identity of the other people in the room. It was reasonable for the claimant to expect that the respondent’s witnesses would be in attendance at the hearing. This is an open hearing. While the claimant was giving evidence the observer sat quietly at the back of the tribunal room. She did not interrupt the evidence of the claimant. The tribunal is independent and free from bias. It is satisfied that there is no apparent bias, that a fair-minded and informed observer would not conclude that there was a real possibility that the tribunal was biased. Further application for an adjournment[50]When the tribunal announced its decision, the claimant indicated that he would not accept the decision, that he was not comfortable to continue with the hearing. He asserted that he was medically unfit to continue with the hearing. The tribunal adjourned while the claimant provided medical evidence in support of his assertion. The claimant provided a fit note from his GP dated 4 October 2024 stating that the claimant was suffering from depression and a physical ailment. The Fit note indicated that he may be fit for work with amended duties, that is, to consider altered hours.[51]When the hearing resumed the claimant was given the opportunity to make further representations. He stated that: 51.1. he had tried to obtain treatment for his condition on the previous Saturday when he went to the hospital, but he could not be seen; 51.2. he has been suffering from a mental health issue for a while; 51.3. he had no further medical evidence in support of his application; 51.4. his mental health is more important than anything else.[52]Solicitor for the respondent objected to the application for an adjournment on the grounds that: 52.1. the fit note does not support the claimant's assertion that he is unfit to attend the hearing; 52.2. the claimant attended the hearing the previous day and did not mention this - at no point was medical evidence referred to ; 52.3. the claimant, in his earlier application for the tribunal to recuse itself, made no reference to the claimant being unfit to continue. Only when the application was denied did the claimant make the assertion; 52.4. the respondent has no objection to any increase in breaks, as and when necessary, to allow the claimant to continue.[53]The tribunal considered all the circumstances and in particular the following:- 53.1. the claimant made no reference to a medical condition affecting his ability to attend and participate in the hearing until after his application for the tribunal to recuse itself was unsuccessful; 53.2. the medical evidence provided does not support the claimant's assertion that he is unable to participate in tribunal proceedings; 53.3. the tribunal acknowledges that the claimant is suffering from depression and finds the tribunal proceedings difficult and stressful. However, steps can be taken to assist the claimant. For example, we can take extra breaks, we can ask the respondent’s witnesses to sit in the waiting room while the claimant continues with his evidence, we can ask the observer to observe a different hearing. When the time comes for cross examination of the respondent’s witnesses steps can be taken to assist the claimant. This can be discussed with the claimant when he has finished giving his evidence.[54]In all the circumstances the application is refused. It is not in the interest of justice to delay this hearing.[55]When the tribunal announced its decision EJ Porter confirmed to the claimant that the hearing would continue, with reasonable adjustments being made. The claimant indicated that he would not continue.[56]EJ Porter advised the claimant that if he refused to participate in the proceedings, if he refused to continue with the cross examination, the respondent had indicated that it would make an application to strike out the claim. EJ Porter advised the claimant that he would be given time to reflect on the decision of the tribunal, which would retire for 10 minutes before coming back in to restart the hearing.[57]When the tribunal returned ten minutes later the claimant was in attendance. He did not ask for any further time for reflection. He indicated that he would not proceed with cross examination, that he would not participate in the hearing because he was unable to. Application to strike out the claim[58]The claimant remained in attendance while the respondent made an application to strike out the entire claim on the grounds that the claimant’s refusal to participate in the proceedings was unreasonable and/ or scandalous behaviour and it was in the interests of justice to strike the claim out.[59]The claimant objected to the application asserting that it would be unfair to strike out the claim because the claimant was suffering from a mental health condition. Determination of the application to strike out the claim[60]The tribunal has considered its powers to strike out under rule 37 as indicated above. Again, the tribunal considered the two stage process. It was satisfied and found that the claimant’s conduct, refusing to participate in the hearing, was an abuse of process, was unreasonable conduct in the proceedings. The tribunal went on to consider all the circumstances, including the magnitude of the default, whether it is the responsibility of the claimant, what disruption, unfairness or prejudice had been caused, whether a fair hearing was still possible, and/or whether strike-out or some lesser remedy would be an appropriate response, whether it was in the interest of justice that the claim be struck out.[61]The tribunal has considered all the circumstances including, in particular, the following: 61.1. From the outset of the hearing the claimant has made repeated applications, the outcome of which, if successful, would have been to postpone the hearing; 61.2. The claimant made his applications for leave to amend the claim, for specific disclosure of documents, for the reliance on additional witness statements on the morning of the first day of the hearing, without giving the respondent advance notice of his applications. The claimant was fully aware from the preliminary hearing before EJ Allen on 1 September 2023 that presenting evidence on the day of the hearing is unreasonable; 61.3. The application for the tribunal to recuse itself was unsupported by any examples of how the tribunal had exhibited prejudice against the claimant; 61.4. The claimant refused to accept the explanation given for the attendance of Mr Liyanage in the tribunal; 61.5. The claimant did not on the first day seek clarity as to the identity of the people in the room, did not express any concern about the attendance of an observer, did not seek any adjustments to allow him to participate in the hearing; 61.6. the claimant refused to continue to participate in the hearing by refusing to continue with his cross examination. The respondent did not have the opportunity to put its full case to the claimant, to challenge the entirety of his evidence; 61.7. the claimant did not, on the first day of the hearing indicate that he was suffering from ill-health, that he had been to the hospital, that he was unfit to take part in the proceedings. That assertion was made only after the tribunal had rejected the claimant’s application to recuse itself and adjourn the hearing to a different panel; 61.8. there was no medical evidence to support the claimant’s assertion that he was unfit to continue with the hearing. Indeed, he has been able to continue with the hearing by making applications and responding to the respondent’s applications. He has done so in the presence of Mr Liyanage, Ms Kauser and the observer; 61.9. the claimant wrongly asserted that the respondent had served a new witness statement upon him outside the time limit ordered. This is incorrect. The tribunal has been provided with the two witness statement bundles prepared by the respondent. The documentary evidence supports the respondent’s assertion that the witness statements were provided to the claimant in time, in accordance with the terms of the order, and that the provision, in advance of this final hearing, of the first witness bundle containing the statement of Mr Liyanage relevant to the preliminary hearing, was an error which was rectified by the respondent’s solicitor.[62]The claimant has throughout this hearing acted in an unreasonable manner and has, without justification, refused to participate in the continued hearing of the evidence. The claimant is fully responsible for this conduct which has disrupted the hearing.[63]The tribunal is satisfied and finds that the conduct of the claimant has deprived the respondent of its right to a fair hearing. In all the circumstances it is in the interest of justice and consistent with the overriding objective to strike out this claim in its entirety. A lesser penalty would not be appropriate. The only lesser penalty would be to adjourn the hearing to a later date. This would increase the costs of the respondent and it is not clear whether the claimant would participate in any such hearing, bearing in mind his conduct at this hearing and that any adjournment of the hearing would be to a later date before this same panel.[64]The claim is struck out. Respondent’s application for costs[65]When the tribunal returned to the tribunal hearing room and announced its decision the claimant was in attendance. The respondent indicated that it intended to make an application for costs. The tribunal adjourned the hearing over the lunch break and ordered that: 65.1. the respondent provide the tribunal and the claimant with a schedule of the costs claimed; 65.2. The application for costs be heard after the lunch break; 65.3. the claimant was entitled make representations to oppose the costs application and could choose whether to make written representations rather than attend the hearing in person.[66]The respondent provided the Schedule of Costs, to the tribunal and to the claimant, as ordered. The claimant attended the hearing in person following the lunch break to oppose the application for costs.[67]The tribunal considered the submissions of the respondent and the Schedule of Costs, which was a break down of the hours spent by the respondent’s solicitors in preparing for the hearing. In summary it was asserted that: 67.1. the application for costs is made under rules 76(1)(a) of the Employment Tribunal Rules of Procedure; 67.2. The respondent accepts that the award of costs in the tribunal is the exception rather than the rule; 67.3. However, the claimant has been guilty of unreasonable conduct and his claim has been struck out on that basis. The bar to the award of costs has been reached; 67.4. The respondent has incurred £12,251 in legal costs in defending this claim. There was an order by EJ Allen that the claimant pay costs in the sum of £1,000, leaving outstanding costs in the sum of £11,251; 67.5. the respondent seeks recovery of its legal costs in preparation of the case from the date of the last hearing on the 1 September 2023 until today's date. As indicated in the schedule of costs this totals £5740; 67.6. Legal work by the respondent’s solicitor is charged at an hourly rate lower than the national guidelines.[68]The claimant was given the opportunity to respond to the application. The claimant alleged that his right to a fair hearing has been denied, the tribunal has ignored his human rights and his request for an adjournment. The tribunal has a legal obligation to provide reasonable adjustments and has failed to do so.[69]EJ Porter indicated that all these matters were relevant to an appeal against the decision of the tribunal. The tribunal awaited the claimant’s reply to the application for costs. Claimant’s application for reconsideration of its decisions[70]The claimant asserted that he was applying for a reconsideration of the decision to strike out the claim and the refusal of the claimant’s request for an adjournment on the grounds that: 70.1. the respondent accused the claimant of scandalous behaviour. This was deeply offensive to the claimant and created a hostile environment in the tribunal; 70.2. This offensive conduct of the respondent solicitor was unchallenged by the tribunal and undermined the claimant’s confidence in the fairness of the hearing and affected his ability to present his case in an environment free from bias; 70.3. the respondent’s solicitor has breached the Solicitors Regulatory Authority (SRA) code of conduct. He should be reported to the SRA. This conduct was not corrected by the tribunal; 70.4. the tribunal ignored the medical evidence and failed in its duty to make reasonable adjustments by adjourning the proceedings.[71]In relation to the application for costs the claimant asserted: 71.1. he could not afford to pay costs. He is now working on reduced hours because of his mental health. This has resulted in a reduction in income; 71.2. he does not have any savings; 71.3. it was hard to him for him to pay the £1000 costs previously awarded but he did pay that by monthly instalments of £80.[72]Solicitor for the respondent strongly refuted the allegation of offensive conduct asserting that he had used the word scandalous to describe the claimant’s conduct as this was the statutory wording under Rule 37 (1)(B). It is not offensive behaviour to quote from the rules of the tribunals. The Law relating to an application for reconsideration[73]Rule 70 of Employment Tribunals Rules and Procedure states that a Tribunal may, on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.[74]A tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’ . Rule 2.[75]In Outasight VB Ltd v Brown 2015 ICR D11 Her Honour Judge Eady QC accepted that the wording ‘necessary in the interests of justice’ in rule 70 allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’. Determination of the application for reconsideration[76]The tribunal has considered the claimant’s application for reconsideration of its decision to strike out the claim and to refuse the request for a postponement.[77]The tribunal has considered all the circumstances including the following: 77.1. the claimant did not assert on the first day of the hearing or earlier on the second day of the hearing that the respondent’s solicitor’s conduct was offensive to him, and/or was affecting his ability to conduct the hearing. This allegation was made for the first time on the afternoon of the second day of the hearing, following the decision to strike out the claim. The allegation is without merit. The respondent’s solicitor was quoting the tribunal rules when describing the claimant’s conduct as “scandalous”; 77.2. the tribunal has not witnessed any inappropriate conduct by the respondent’s solicitor. He has presented the respondent’s case in a professional manner; 77.3. The tribunal did not fail in its duty to make reasonable adjustments. The need for reasonable adjustments was raised by the claimant for the first time on the second morning of the hearing. The tribunal found that it was not in the interests of justice to grant an adjournment. An adjournment was not a reasonable adjustment based upon the medical evidence relied upon by the claimant. The tribunal did consider that medical evidence and took note that the claimant is suffering from depression. It offered a series of adjustments to enable the claimant to continue in the conduct of the proceedings. The suggested adjustments were rejected. The claimant did not adduce any additional medical evidence in support of his application for reconsideration; 77.4. The claimant refused to continue his cross examination. He stated clearly that he did not intend to take any further part in the proceedings, that he was unfit to do so; 77.5. The claimant did continue to take part in the conduct of proceedings after his request for an adjournment was refused. He made oral representations in reply to the application for strike out. The tribunal adjourned for an early lunch while the respondent prepared for its application for costs. The tribunal ordered that the respondent provide the claimant and the tribunal with a written schedule of costs. EJ Porter advised the claimant that he could either attend tribunal to oppose that application or he could make written representations for the tribunal to consider. The claimant chose to make oral representations and again attended the tribunal.[78]In all circumstances the application for reconsideration is refused. There are no grounds on which to support this application. New allegations have been made about the conduct of the respondent’s solicitor and the tribunal but these are completely without merit. It is not in the interest of justice to revoke or vary the decision to strike out or the decision to refuse the request for an adjournment. These decisions are hereby confirmed. The law relating to an application for costs[79]Under rule 76 (1) Employment Tribunals Rules of Procedure 2013 a tribunal may award a costs order or preparation time order where a party has in either bringing the proceedings or in the conduct of the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably; or the claim or response had no reasonable prospect of success.[80]Under rule 76(2) a tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.[81]Rule 76 imposes a two stage test.[82]The tribunal must ask itself whether a party's conduct falls within rule 76 if so, it must then ask itself whether it is appropriate to exercise its discretion to make the award. The tribunal, in deciding whether to exercise its discretionary power under rule 76 should consider all relevant factors including the following;-• costs in the employment tribunal are still the exception rather than the rule;• the extent to which a party acts under legal advice;• the nature of the claim and the evidence;• the conduct of the parties[83]In D’Silva v NATFHE EAT 0126/09 the EAT confirmed that it was not necessary to establish a direct causal link between particular examples of unreasonable conduct and the costs incurred by the respondent. Once a finding of unreasonable conduct is made, the question of costs is then very much within the discretion of the tribunal. Determination of the application for costs.[84]The tribunal has considered the application for costs. It applies the two stage test. The claimant has been guilty of unreasonable conduct in the conduct of these proceedings as identified above. He has on various grounds, sought an adjournment of these proceedings and, when his applications for an adjournment were refused, refused to continue with the conduct of the hearing, refused to continue to give evidence under crossexamination.[85]The tribunal has considered whether to exercise its discretion and make an award of costs. We bear in mind that an order for costs is the exception rather than the rule. We have considered all the circumstances including the following: 85.1. The claimant has been guilty of unreasonable conduct previously in this proceedings. He is aware of the possible cost consequences of such behaviour. EJ Allen ordered him to pay costs on 1 September 2023; 85.2. Nevertheless, the claimant engaged in further unreasonable conduct in presenting, on the first day of the final hearing, an application for leave to amend the claim and a request for specific disclosure of documents and the introduction of two new witnesses. The respondent had not been given prior warning of either of those applications; 85.3. The claimant has refused to continue with the presentation of his evidence. He has refused to take further part in the final hearing, although he has continued to take part by making his application for reconsideration and making representations in relation to the application for strike out and costs order; 85.4. the respondent has incurred legal costs in preparing for the final hearing which could not continue because of the conduct of the claimant.[86]We bear in mind the claimant’s assertion that he does not have sufficient funds to pay costs. We accept what the claimant says. He is in financial difficulty. However, that is not a bar to making an order for costs. As stated above, he knew the possible cost consequences of presenting evidence for the first time on the morning of a hearing. He was advised of the procedure for making an application for leave to amend the claim by EJ Martin in May 2023. He took legal advice after the preliminary hearing on 1 May 2023. Nevertheless, he waited until the morning of the final hearing to make his applications. We have considered the respondent's schedule of cost. In all the circumstances it is in the interests of justice that the claimant pay the respondent’s costs for the preparation of this hearing.[87]As to the amount of costs, we note that the respondent restricts its costs to those incurred in preparing for the final hearing since the preliminary hearing on 1 September 2023. The hourly rate of the solicitor's fees is reasonable. It is lower than the national guidelines.[88]In all the circumstances it is in the interests of justice for the claimant to pay costs in the sum of £4548.00, which is the amount of legal costs incurred for the preparation of this hearing since 4 September 2023. We have calculated this figure by looking at the schedule of costs, counting the number of hours in preparation for the hearing. We have excluded the time spent in telephone calls and engaging in correspondence as these items have not been fully explained to the tribunal.