Mr D Foster v The Monastery Manchester Ltd: 2402443/2024
EMPLOYMENT TRIBUNALS
Case No 2402443/2024Venue public to determine an application made by the respondentHearing 28 June 2024 for the claim to be struck out, or in the alternative for a deposit to be ordered. 2. The claimant chose to attend by telephone rather than in person. He said he was not able to attend the hearing by video because prolonged exposure to computers or video screens caused him migraines. We positioned the telephone in the hearing room so that it was close both to me and to Mr Lewinski, and I explained to the claimant at the start that if he was unable to hear what was being said at any stage, he should say so. In the event there were no difficulties of that kind and all three of us were able to hear what the others were saying. 3. I heard no evidence but I had regard to the following written information: • A bundle of documents for the preliminary hearing which ran to over 90 pages (any reference to page numbers in these Reasons is a reference to that bundle), which included the respondent’s application of 28 June 2024 (pages 50-51). • A draft unsigned witness statement of Paul Griffiths, Chairman and cofounder of the respondent charity; • A written skeleton argument from Mr Lewinski which ran to eight pages, and which was accompanied by a bundle containing copies of 12 decided cases. 4. After making sure that the claimant had seen all the relevant material, I took steps to clarify the legal formulation of his claim. 5. The claimant relied on the proposition that the respondent had a provision, criterion or practice (“PCP”) of requiring applicants for employment to complete a substantial online application form. He alleged that he was disabled by migraines brought on by prolonged computer use, and that the PCP put him at a substantial disadvantage in comparison with persons who are not disabled in that that he was unable to complete such a form without taking significant breaks. If the respondent knew or ought reasonably to have known that he was a disabled person and likely to be at that disadvantage, the duty to make reasonable adjustments would arise. The claimant contended that the adjustment to the PCP would have been to allow him to go through the process on the telephone. 6. After clarifying the way the claim was put I heard an oral submission from Mr Lewinski as to why the claim lacked merit, in which he expanded on his written submission. The claimant made an oral submission in response. I de
Between
Mr D FosterClaimantThe Monastery Manchester LtdRespondent
Before
Regional Employment Judge FraneyIn person for claimantMr S Lewinski (instructed by Counsel) for respondentDate 29 July 2024
JUDGMENT
[1]The claim is struck out in its entirety under rule 37(1)(a) because it is vexatious and has no reasonable prospect of success.[2]Under rule 76(1)(a) and (b) the claimant is ordered to pay the respondent £5,000 in respect of its costs incurred in this case.
REASONS
[1]This was a preliminary hearing held in public to determine an application made by the respondent on 28 June 2024 for the claim to be struck out, or in the alternative for a deposit to be ordered.[2]The claimant chose to attend by telephone rather than in person. He said he was not able to attend the hearing by video because prolonged exposure to computers or video screens caused him migraines. We positioned the telephone in the hearing room so that it was close both to me and to Mr Lewinski, and I explained to the claimant at the start that if he was unable to hear what was being said at any stage, he should say so. In the event there were no difficulties of that kind and all three of us were able to hear what the others were saying.[3]I heard no evidence but I had regard to the following written information:• A bundle of documents for the preliminary hearing which ran to over 90 pages (any reference to page numbers in these Reasons is a reference to that bundle), which included the respondent’s application of 28 June 2024 (pages 50-51).• A draft unsigned witness statement of Paul Griffiths, Chairman and cofounder of the respondent charity;• A written skeleton argument from Mr Lewinski which ran to eight pages, and which was accompanied by a bundle containing copies of 12 decided cases.[4]After making sure that the claimant had seen all the relevant material, I took steps to clarify the legal formulation of his claim.[5]The claimant relied on the proposition that the respondent had a provision, criterion or practice (“PCP”) of requiring applicants for employment to complete a substantial online application form. He alleged that he was disabled by migraines brought on by prolonged computer use, and that the PCP put him at a substantial disadvantage in comparison with persons who are not disabled in that that he was unable to complete such a form without taking significant breaks. If the respondent knew or ought reasonably to have known that he was a disabled person and likely to be at that disadvantage, the duty to make reasonable adjustments would arise. The claimant contended that the adjustment to the PCP would have been to allow him to go through the process on the telephone.[6]After clarifying the way the claim was put I heard an oral submission from Mr Lewinski as to why the claim lacked merit, in which he expanded on his written submission. The claimant made an oral submission in response. I deliberated in chambers and then gave a brief oral judgment with reasons striking out the claim.[7]Mr Lewinski then pursued his costs application, handing up copies of the costs warning letter and the Schedule of Costs. I heard from the claimant in reply and obtained some further information about his ability to pay, before announcing my decision in relation to costs.
Facts
[8]I made no findings of fact for the purposes of my decision, proceeding only on the basis of the documents available. At the start of the hearing I asked the claimant some factual questions to elicit information from him which was not immediately apparent to me, and I treated all his factual assertions as true for the purpose of making my decision.[9]On that basis I can summarise the facts as follows.
Background
[10]The respondent is a charity responsible for the running of an historic monastery in Manchester. It is open to the public for part of the week for a variety of health and wellbeing services, and it also holds fundraising events and weddings.[11]In March 2022 the respondent advertised a position as a Wedding and Special Events Coordinator. The advert appeared at pages 64-66. It said nothing about the application process, and made no mention of any requirement to complete an online application form. It ended with an email address for applications to be made.[12]That post was filled in May 2022, and the advert should have been withdrawn. However, I accepted the claimant's evidence that it remained visible on the respondent’s website in early 2024. Job Application[13]On 18 February 2024 the claimant applied for that role. He sent an email incorporating his CV which appeared at pages 67-68. It said he was a self-employed paralegal with a sound knowledge of UK employment law. It made a brief reference of having worked in high-end hospitality environments and hotels. It ended with the following message: “Please see (above) my CV. I would be grateful if you could provide a telephone number and contact person for me to continue my application owing to Computer Vision Syndrome. I find it difficult to fill out protracted applications online owing to the discomfort caused by prolonged periods of staring at a computer screen.”[14]The claimant received no reply. He did not send any further follow-up email, or seek to make contact with the respondent by telephone using the number on its website prior to his next email of 2 April 2024. Emails Threatening a Claim[15]The email of 2 April 2024 appeared at page 70. It was sent just after 6.00am. The substantive part of the email began as follows: “I am writing to you today giving you notice that I will shortly be submitting a claim via ACAS to take the Monastery Manchester Limited to the Employment Tribunal. You have until 04th April at 4.00pm to respond before I submit the claim to ACAS. Any hearing is likely to be time consuming and resource costly to your business. This is an opportunity for us to work together to agree on an amount of financial compensation before the costs begin to spiral.”[16]The remainder of the email was described as “Particulars of claim form (Letter Before Claim)” which asserted that having ignored his request for a telephone application the respondent had failed to make a reasonable adjustment. It referred to the respondent as “the Defendant” and its entirety it read as follows: “Background The Claimant is a job applicant from London. The Claimant suffers from CVS and experiences nausea and migraines from prolonged periods sitting in front of a PC. The Claimant asked the Defendant if he could complete his application telephonically. The Defendant ignored the Claimant’s request – and the Claimant advances that this is a failure on the Defendant’s part to make a “Reasonable Adjustment”. The Parties 1. The Claimant is a job applicant from London. 2. The Defendant is an employer from the U.K. Legal Claims 3. The Claimant advances claims of:(a) Hurt to feelings(b) Failure to make a Reasonable Adjustment(c) Disability Discrimination(d) Aggravated Damages Facts The claim itself is being brought on the basis that the Defendant failed to make a Reasonable Adjustment in the recruitment process. (a) The Defendant repeatedly ignored the Claimant’s entirely legitimate request to continue his application telephonically. Remedy 5. On the basis of the above the Claimant seeks the following by way of remedy: (a) £8,500 – for hurt to feelings (d) £3,500 – for aggravated damages1(e) Interest before judgement (calculated at 8% a year)(f) A recommendation from the Tribunal that has the Defendant review its hiring practices moving forward.(g) An order from the Tribunal that has the Defendant commit to some undertaking in respect of training its staff to be mindful and sensitive the plight of people suffering from CVS and similar illnesses and disabilities.” 1 Items (b) and (c) were missing, giving the impression this was based on some sort of template.
Remedy
[17]The claimant received no response to that email. He followed it up with an email on 4 April at 10:49 (pages 74-77) in which he simply forwarded the text of the email two days earlier.[18]No reply was received. Early Conciliation and the Claim Form[19]The claimant contacted ACAS to initiate early conciliation on 18 April 2024. The respondent was not contacted by ACAS and the certificate was issued on 22 April 2024 (page 1).[20]The claimant presented his claim form on 23 April 2024 (pages 2-13). In box 8.1 he ticked the box for disability and added that the organisation had failed to make a reasonable adjustment for him.[21]Box 8.2 invited him to set out the background and details of the claim, including the dates when the events he was complaining about happened. The totality of his entry on that page was as follows: “Yeah, so I applied for a job with the company. I asked them to make a reasonable adjustment for me to help me access the application process fairly (“Disability”) and they totally ignored my request which is discrimination and failure to make a reasonable adjustment.”[22]In box 9.2 he said he was seeking “a bit of compensation” and “a recommendation from the Tribunal that forces this company to change their ways”.[23]On box 12 he was asked whether he had a disability, and he ticked the box “no”. Case Management[24]The claim was sent to the respondent by the Tribunal on 9 May 2024. It was listed for a preliminary hearing for case management on 25 July 2024. However, by a letter of the same date the claimant was required by Employment Judge Ross to confirm by 23 May 2024 what impairment or condition caused him to be a disabled person, and what reasonable adjustment he said the respondent should have made.[25]The claimant did not comply with this direction.[26]On 3 June 2024 the respondent’s solicitors applied for an extension of time for the response form, and for an unless order dismissing the claim if the claimant did not provide the information Employment Judge Ross had required.[27]On 6 June 2024 Employment Judge Slater declined to grant an unless order, but made clear that the claimant had to provide the information required by 13 June 2024. Time for the response was extended to 14 days after he provided that information.[28]The claimant did provide the disability information by email of 11 June 2024. He confirmed that the disability was “migraines caused by prolonged exposure to computers/video screens”, and that the reasonable adjustment was a “telephonic job application”. Attached was a letter from the General Practitioner Dr McCrea dated 1 March 2024 which read as follows: “Unfortunately, Daniel suffers with migraine which is exacerbated by computer use so he needs to take regular breaks from the computer. I’d be grateful if this could be allowed into his work schedule.” Response Form and Respondent’s Application[29]The response form was presented on 25 June 2024. It appeared at pages 35-43. It denied that the claimant was disabled and put him to proof on that. It asserted that the claim had no merit and had been brought solely to get compensation through a settlement, and was therefore vexatious and had no reasonable prospect of success.[30]The grounds of resistance also explained that there had been no vacancy for the role in question current in 2024, that the claimant's CV did not demonstrate the experience and skills necessary for the role even if it had been available, and there had been no requirement to fill out lengthy online forms in any event. Even if there had been such a requirement, the claimant would have been able to complete it in his own time taking any breaks he required, and if there had been an ongoing recruitment process with a credible application the respondent would have been happy to have dealt with the claimant by telephone.[31]By email of 28 June 2024 (page 51) the respondent applied for the claim to be struck out or the subject of a deposit, and the hearing was converted to a public preliminary hearing. Relevant Legal Principles – Equality Act 2010[32]The claim was brought under section 39(1)(a) of the Equality Act 2010, which provides that: “An employer (A) must not discriminate against a person (B)…in the arrangements A makes for deciding to whom to offer employment…”[33]The fact that the duty to make reasonable adjustments extends to the application process is confirmed by paragraph 8 of schedule 8 to the Act. The scope of the duty to make reasonable adjustments appears in sections 20 and 21.[34]It followed that the claimant's case under the Equality Act 2010 could be summarised as being based on the following propositions:(1) The respondent was making arrangements for deciding to whom to offer employment;(2) Those arrangements involved a PCP that required completion of a substantial online application form;(3) The claimant was a disabled person by reason of migraines caused by prolonged exposure to computer/video screens;(4) The PCP put him at a substantial disadvantage because he was unable to complete a substantial application form without taking significant breaks;(5) The respondent knew or ought to have known that he was a disabled person and likely to be at that disadvantage;(6) The respondent failed in its duty to take such steps as it would be reasonable to take to avoid that disadvantage by failing to offer to allow him to give the information required on the telephone rather than by completing an online application form. Relevant Legal Principles – Striking Out[35]So far as relevant, rule 37 of the Employment Tribunal Rules of Procedure 2013 provides as follows: “(1) At any stage of proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds: (a) That it is scandalous or vexatious or has no reasonable prospect of success…”[36]The power to strike out a claim has to be exercised particularly carefully in complaints of discrimination. The principles were summarised in Mechkarov v Citibank [2016] ICR 1121 and can be summarised as follows:(1) Discrimination claims are generally fact-sensitive. Their proper determination is always vital in a pluralistic society.(2) It is only in the clearest case that a discrimination claim should be struck out without determining key core disputed issues.(3) Where there are core issues of fact that turn to any extent on oral evidence they should not be decided without hearing oral evidence.(4) The claimant’s case must be taken at its highest.(5) But if the claimant's case is conclusively disproved by, or is totally and inexplicably inconsistent with undisputed contemporaneous documents, it may be struck out.[37]I had regard to the other authorities mentioned in Mechkarov, and in particular to the two stage approach recommended by Lady Smith in Balls v Downham Market High School & College [2011] IRLR 217. Even if there is a conclusion that a claim has no reasonable prospect of success, the Tribunal should still consider whether it should exercise its discretion to strike the claim out.[38]As to whether a claim is vexatious, I had regard to what was said by Lord Bingham in Attorney General v Barker [2000] 1 FLR 759 as follows: “‘Vexatious’ is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportionate to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordering and proper use of the court process.” Respondent’s Submissions[39]Mr Lewinski had prepared a written skeleton argument to which reference can be made. The core proposition was that the case had no reasonable prospect of success because there was no vacancy and therefore an obligation to make reasonable adjustments to the recruitment process could not arise.[40]In any event, there was no requirement for the claimant to complete an online application form, even had his application showed the experience necessary for the vacancy if one had existed. He suggested that the claimant could not have suffered any loss given that he would never have been successful in those circumstances.[41]Further, he invited me to conclude that the case was vexatious from the fact that the claimant had not followed up his initial email in February, but had simply resorted straight to the threat of litigation and a demand for payment on 2 April. There had been no “repeated” requests for a telephonic interview. Claimant's Submission[42]The claimant began his submission by accepting the timeline shown by the documents, meaning that there was no contact between February and the email of 2 April. However, he pointed out that his emails of 2 and 4 April contained the text of his first email of 18 February, which meant that he had repeated the request for telephone arrangements even though that was combined with a letter of claim.[43]He argued that he had allowed the respondent adequate time to respond to him after the February email before pursuing it in early April. He pointed out that the remedy he was seeking was not limited to compensation for himself but a recommendation to benefit others in future. He emphasised that the respondent had failed to undertake proper housekeeping of its website if an out of date vacancy was still visible, and his attempts to resolve the case with a payment should be seen in the context of trying to save costs all round. He denied having been vexatious and said his complaint had a reasonable prospect of success. Conclusions on Strike Out Application[44]I considered first whether the claim had any reasonable prospect of success. I proceeded on the facts stated above, taking at face value the claimant's assertion that the job advert from 2022 was still visible on the respondent’s website in February 2024.[45]However, the claimant was not in a position to dispute the fact that that vacancy had been filled in the middle of 2022 and was no longer current at the time he made his application.[46]Nor did he have any evidence that this respondent would require an online application form to be completed, saying only that it was an assumption based on his knowledge of standard processes in recruitment generally.[47]I concluded that in fact there was no live vacancy when the claimant made his application and no requirement for him to complete an online application form.[48]That being the case, it seemed to me the claim was doomed to fail at the very first hurdle given the legal framework under the Equality Act summarised above. In February 2024 in relation to this vacancy the respondent was not making any arrangements for determining to whom to offer employment, because there was no vacancy and no offer of employment to be made. This was therefore a case over which the Tribunal would have no jurisdiction as it fell outside section 39.[49]Even if that there had been a live vacancy, there was no evidence from which the Tribunal could conclude that there was a PCP of requiring a detailed online application form to be completed. The advert itself only required an application to be made by email. The claimant would not therefore be able to prove facts from which the Tribunal could conclude that there was any PCP being applied under section 20.[50]Those two points alone meant that the claim would have no reasonable prospect of success, whatever the position on disability or knowledge.[51]I then considered whether the claim had been vexatious.[52]In my judgment it was significant that the claimant made no effort to follow up his email of 18 February with a further email of enquiry, or make any attempt to contact the respondent by telephone. Instead he simply waited for a period of approximately six weeks and then sent an email which amounted to a letter before action and giving the respondent a short deadline of less than two days to respond before a claim was submitted. That did not suggest that he had any genuine interest in getting this job.[53]Indeed, I noted that the terms of the proposed particulars of claim appeared generic, in that they described the respondent simply as “an employer from the UK”. It was asserted that the respondent had repeatedly ignored his request, whereas in fact when that email was sent on 2 April the request had only been made once.[54]Further, that email sought a sum of £12,000 plus interest, albeit combined with recommendations which would benefit others.[55]It was followed up two days later by another email which simply forwarded the email of 2 April, thereby reiterating the demand for compensation but this time only five hours before the 4.00pm deadline.[56]When the claim form was completed it did not contain the more detailed (if generic) particulars of claim but instead just gave the three lines quoted above and did not provide any real details of what the case was about. That required the Tribunal to take the unusual step of requiring the claimant to provide further information before the response form was presented.[57]Looking at the matter in the round, the only legitimate grounds for criticism of the respondent were that it had allowed an out-of-date vacancy to remain visible on its website, and that it had failed to respond to that effect when the claimant sent his first email on 18 February 2024. The claimant’s assertion that there would be a detailed online application form was simply supposition on his part and did not reflect anything the respondent had said or indicated.[58]In all those circumstances I was satisfied that there was no proper basis in this case for alleging that the respondent had breached the Equality Act, and I concluded that the claimant sought to pursue this case in the Employment Tribunal not because he considered that he had been the victim of disability discrimination, but as a means of securing a commercial settlement of the case by a payment of compensation from the respondent. In that sense the Tribunal process was abused because the claimant was not seeking to right a legal wrong that he believed he had suffered, but rather to cause the respondent to decide to pay him something rather than defend what was plainly a hopeless claim.[59]I therefore concluded that this was a vexatious claim as well as having no reasonable prospect of success. I was satisfied that the power to strike out the claim had arisen.[60]I then considered whether it was appropriate to exercise my discretion to strike it out. I could see no possible reason for allowing it to continue. The claim was struck out under rule 37(1)(a). Costs Application
Introduction
[61]After I gave oral judgment with brief reasons as above, Mr Lewinski applied for costs on behalf of the respondent.[62]He provided me with a letter of 3 June 2024 written to the claimant and marked “Without Prejudice Save as to Costs”, together with a costs schedule which showed that the total sum claimed was £13,227.50 plus VAT. That covered the initial costs of seeking an extension of time for the response, the subsequent preparation of the response form, drafting the costs warning letter of 3 June 2024, general case management and preparation for this hearing, including preparation of the costs schedule, and counsel’s fees for the hearing today.[63]The claimant confirmed he had seen both documents.[64]The notice of hearing (pages 59-61) had required the claimant to provide a statement of his means with accompanying documentation prior to the hearing, and he had done so on 18 July 2024 (pages 62-63). Legal Framework[65]The power to award costs is contained in the 2013 Rules of Procedure. The definition of costs appears in rule 74(1) and includes fees, charges, disbursements or expenses incurred by or on behalf of the receiving party.[66]Rule 75(1) provides that a Costs Order includes an order that a party makes a payment to another party “in respect of the costs that the receiving party has incurred while legally represented”.[67]The circumstances in which a Costs Order may be made are set out in rule[76]The relevant provision here was rule 76(1) which provides as follows: “A Tribunal may make a Costs Order or a Preparation Time Order and shall consider whether to do so 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) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success.” 68. The procedure by which the costs application should be considered is set out in rule 77 and the amount which the Tribunal may award is governed by rule 78, which empowers a Tribunal to make an order in respect of a specified amount not exceeding £20,000. 69. Rule 84 concerns ability to pay and reads as follows: “In deciding whether to make a costs, preparation time or wasted costs order and if so in what amount, the Tribunal may have regard to the paying party’s … ability to pay.” 70. It follows from these rules as to costs that the Tribunal must go through a three stage procedure (see paragraph 25 of Haydar v Pennine Acute NHS Trust UKEAT 0141/17/BA). The first stage is to decide whether the power to award costs has arisen, whether by way of unreasonable conduct or otherwise under rule 76; if so, the second stage is to decide whether to make an award, and if so the third stage is to decide how much to award. Ability to pay may be taken into account at the second and/or third stage. 71. The case law on the costs powers (and their predecessors in the 2004 Rules of Procedure) include confirmation that the award of costs is the exception rather than the rule in Employment Tribunal proceedings; that was acknowledged in Gee v Shell UK Limited [2003] IRLR 82. 10. A well-argued warning letter can provide a basis for an order for costs if the recipient has unreasonably failed to engage properly with the points raised: Peat v Birmingham City Council UKEAT/0503/1. 11. As to the question of means or ability to pay, in Vaughan v London Borough of Lewisham & Others (No. 2) [2013] IRLR 713 the EAT said this in paragraph 28: “The starting point is that even though the Tribunal thought it right to ‘have regard to’ the appellant’s means, that did not require it to make a firm finding as to the maximum that it believed she could pay, either forthwith or within some specified timescale, and to limit the award to that amount. That is not what the rule says (and it would be particularly surprising if it were the case, given that there is no absolute obligation to have regard to means at all). If there was a realistic prospect that the appellant might at some point in the future be able to afford to pay a substantial amount it was legitimate to make a costs order in that amount so that the respondents would be able to make some recovery when and if that occurred….It is necessary to remember that whatever order was made would have to be enforced through the County Court, which would itself take into account the appellant’s means from time to time in deciding whether to require payment by instalments, and if so in what amount”. Submissions 72. In his oral application Mr Lewinski relied on my conclusion that the claim had no reasonable prospect of success and was vexatious, and drew my attention in particular to those parts of the costs warning letter which accurately predicted the basis on which the claim would fail. 73. He emphasised that despite the lack of merit in the case the respondent had still given the claimant an opportunity at an early stage (before the response form was prepared) to withdraw the claim without costs. The costs warning letter had set out in some detail why the analysis led to the conclusion that the claim could not succeed, and for a person with a self-proclaimed sound knowledge of UK employment law the position ought to have been clear. 74. He reminded me that the respondent is a charity which engages in fundraising efforts and said it would be right for it to be compensated for the costs incurred in defending this vexatious claim. He invited me to award the full amount sought despite the information available about the claimant's ability to pay. 75. In response the claimant emphasised that he had been hoping to be able to explain his case fully at a final hearing, and he said that after receiving the costs warning letter he had tried to resolve the case for “a couple of thousand pounds” before today’s hearing. He emphasised that he had seen the job advertised on the respondent’s website and had applied for it and then heard nothing back. 76. The claimant invited me to take into account his ability to pay. The statement at page 62 of the bundle indicated that the claimant was a casual worker whose income varied from week to week. He lived with his parents and paid them each month for use of a spare room. He also had to pay something towards the upkeep of his wife and their household, he and his wife having separated. His witness statement said he had weekly income of about £350 and weekly expenditure, including supporting his wife and household, which came to £265, leaving on average about £85 per week of disposable income.[77]In response to my questions about property and debts the claimant said that he was a joint owner with his wife of a property in Africa which he estimated was worth about £100,000 but with an outstanding mortgage of £50,000.[78]This application was made under rule 76(1)(a) and (b). I was satisfied that the power to award costs had arisen as a consequence of my earlier decision that the claim had no reasonable prospect of success and that it had been brought vexatiously.[79]The second question was whether I should award any costs. I took into account the claimant's ability to pay. It was clear that he would be able to pay something, particularly if his prospects of future employment were taken into account given his CV and legal experience. Equally, I was satisfied that it was appropriate for the respondent to be compensated for the costs incurred in defending this legal claim, when its failings at worst were simply that it had allowed an out-of-date vacancy to be visible on its website and had failed to respond to an email from the claimant making an application for a vacancy which did not exist.[80]I moved to the third stage, which was deciding how much to award. In principle the whole costs of the proceedings could be awarded because the claim was vexatious and should never have been brought. This was not a case where I would be minded to limit costs to those incurred after the date of the costs warning letter, although had I been conducting a detailed assessment there might have been some issues about the rates on the schedule, and some of the time spent might be viewed as more than could reasonably be recovered.[81]However, I also took into account at this stage the claimant’s ability to pay. Even though on the face of it the claimant may have approximately £25,000 of equity tied up in a house in Africa, I did not consider it appropriate to proceed on the basis that he would be in a position immediately to pay a lump sum of the amount sought by way of costs.[82]As far as his current disposable income was concerned, that was approximately £4,400 per year based on the figures provided at page 62. Whether as part of the enforcement of any award he could reach agreement with the respondent about a time for payment was not primarily my concern.[83]I also took into account that although he has difficulties with prolonged computer work, he has experience in customer service and administration as well as currently working as a self-employed paralegal. His CV says he has a degree as well as A Levels, GCSEs and vocational qualifications. In those circumstances I took into account that he ought to be able to secure permanent employment at some point in the foreseeable future.[84]Overall, balancing the information available about the claimant's ability to pay and the amount of costs incurred by the respondent, I concluded that the appropriate award was £5,000.