Ms D Michalik and Mr K Williams v Prometheus Safe & Secure Ltd: 2402842/2024 and 2406678/2024
EMPLOYMENT TRIBUNALS
Case No 2402842/2024, 2406678/2024
Between
Mr K WilliamsClaimantPrometheus Safe & Secure LimitedRespondent
Before
Employment Judge AndersonDate 11 June 2026
JUDGMENT
[1]The application made by the Respondent for costs is refused.
REASONS
[1]The Respondent, by application dated 23rd April 2026 applies for its costs from Ms D Michilak and Mr K Williams.
Background Facts
[2]By ET 1s dated 14th May 2024, the Claimants commenced proceedings claiming unlawful deduction from wages on the basis that they were being paid below the National Minimum Wage.[3]The basic premise of the claim was that they were on call, severely restricted in what they could do and were not remunerated for this.[4]On the 17th March 2026, this matter came before me for a two day hearing to take place in person at Manchester Employment Tribunal. Having taken some time to undertake the necessary reading, when the parties were called in, I was informed that the Claimants were withdrawing their claims. I then proceeded to produce a dismissal on withdrawal Judgment the same day which was sent to the parties on the 27th March 2026.[5]By letter dated 23rd April 2026, the Respondent applied for its costs. The application was referred to me and on 19th May 2026, I directed further correspondence be sent to the parties, inviting a response and indicating that the application may be considered on the papers. The Respondent replied on the 1st June 2026 and the Claimant’s representative replied on the 2nd June 2026. Procedural Matters[6]Rule 75 of the Employment Tribunal Procedure Rules 2024 permits a costs application to be considered in writing or at a hearing. The obligation is that a costs order must not be made against a party unless that party has had a reasonable opportunity to make representations.[7]Following my directions inviting representations in response to the application for costs, a reply was sent on behalf of the Claimants. I consider that the Claimants have had a reasonable opportunity to make representations in writing.[8]I considered it appropriate and in accordance with the overriding objective to consider this application for costs on the papers. With the current backlog, arranging a hearing would likely take an additional six months or more and I was capable of understanding the relevant points on the papers.[9]In considering an application for costs, I must determine the following issues:a. Whether the threshold for the making of a costs order has been met.b. Whether I should exercise my discretion in favour of making a costs awardc. The assessment of the costs incurredd. Whether I should exercise a discretion to take into account the means of the paying party in making any award.[10]The application for costs by the Respondent relies upon Rule 74(2)(b) – That the Claimants’ claims had no reasonable prospects of success and Rule 74(2)(a) – that the Claimants have acted vexatiously, abusively, disruptively and/or unreasonably in bringing the proceedings and the way the proceedings have been conducted.
The Law
[11]Rule 74 of The Employment Tribunal Procedure Rules 2024 provides: When a costs order or a preparation time order may or must be made 74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success, or(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.[12]Once it has been established that the threshold for costs has been met, the Tribunal has a wide discretion in respect of whether or not to make a costs award: Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78. Furthermore, there must be some element of causation between the threshold being met and the costs incurred.
Conclusions
[13]I find that following the Judgment of the Supreme Court in Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8 the claims made by the Claimants had no reasonable prospects of success within the meaning of Rule 74(2)(b). I make this finding because the undisputed facts were that when the Claimants were on call, they were not undertaking an assignment and during this period were able to be at home and asleep. The Supreme Court considered the relevant legislation, particularly what is meant by being available for work and ‘for the purposes of working’ within the meaning of Regulation 32 of the National Minimum Wage Regulations 2015. On a proper analysis of the facts in this case and a detailed consideration of the Judgment of the Supreme Court, this is the proper conclusion in law.[14]I do not consider that the Respondent has established that the Claimants have acted vexatiously, abusively, disruptively and/or unreasonably in bringing the proceedings and the way the proceedings have been conducted. Whilst the merits of a case can also fall to be considered under Rule 74(2)(a) as well as under the explicit provision of Rule 74(2)(b), I do not accept the central proposition under this ground that the continuing of this claim and the withdrawal of the claim on the morning of the hearing amounted to unreasonable conduct as defined within this Rule.[15]Having found that that the threshold for costs has been met, I must exercise my discretion as to whether or not to make an award of costs.[16]I have a clear recollection of the morning of the hearing in this case. I had access to the pleadings and the case file. I was aware of the Judgment of the Supreme Court. Having read the pleadings, it was not immediately apparent to me that these claims had no reasonable prospects. What was apparent to me was that I would need to discuss the Judgment of the Supreme Court, seek clarification from the parties as to the exact points of dispute, and the nature of the evidence to be heard to determine that. In other words, a standard hearing as is any other.[17]I then received Counsel’s Skeleton Argument. I read that document. I considered that it set matters out far more clearly than the Grounds of Resistance. The first 22 paragraphs rehearsed the background facts. Para 23 onwards provided submissions and legal analysis. The submissions from para 23 properly analysed the Judgment of the Supreme Court in detail and then referred back to the facts of the case. In analysing the Judgment, key passages were repeated with appropriate emphasis for the reader and the core misunderstandings in the Claimant’s case were also identified.[18]A grounds of resistance is a pleading and a skeleton argument is a submission. The drafting of the two documents will inevitably differ in purpose and style and I mean no criticism in what I am about to state. The ET 3 pleads facts and also references the wording of Regulation 32. It does not reference the Supreme Court Judgement or an analysis of it.[19]It is my clear recollection that the inherent weaknesses in the Claimant’s claims only became apparent to me following my consideration of Counsel’s skeleton argument. In short, the defence advanced by the Claimants’ to the application has the ring of truth because it is not dissimilar to my experience of picking up this file.[20]I therefore do not accept a core element of the application for costs, namely that there was no material difference between the grounds of resistance and the skeleton argument. Whilst both documents seek to take the reader to the same conclusion, the skeleton argument does so in a way that is far more persuasive and with more impact. I am not suggesting that there is anything inherently wrong with the grounds of resistance, it is simply that that the skeleton argument was more persuasive. It is understandable that a reader may see that document and the lightbulb goes on.[21]I do not consider there to be a tension between my conclusion on the threshold for costs and my identification of the persuasiveness of the skeleton argument. The threshold for costs considers the correct position in law on the facts properly analysed. A claim can lack reasonable prospects even if that is not immediately apparent to the reader. The discretion as to whether to award costs is wider and can legitimately take into account the position, perception and understanding of the parties.[22]I also note that the application relies upon the internal grievance process alongside the grounds of resistance as being a basis for the Claimants being aware of the problems. The application for costs has not persuaded me that the position with the grievance outcome is in any way distinct from the position as it was with the grounds of resistance.[23]I accept that the above is not determinative and that my consideration of my discretion needs to be wider. I recognise that the Claimants had time over a period of years to consider their position and undertake appropriate research. I also recognise that whether the Respondent informs the Claimant of the weaknesses in their case is not determinative of a costs application. There is no such positive duty on a Respondent.[24]Against that, it is apparent that the Claimants were not professionally represented and that this is a complex area of law. I also consider that the Judgment of the Supreme Court is not straightforward to understand to lay persons, not simply because it requires consideration of a number of complex statutory provisions, but also because understanding when someone is working in these circumstances is something that is not immediately obvious. For example, reasonable lay people could instinctively disagree on what the basic facts would mean. Some people would reasonably consider being asleep to mean that you can’t possibly be at work whereas others would consider that given you are at risk of being required to do something for an employer you don’t have clear autonomy and are doing something for someone else’s benefit. In stating this, I am not in any way seeking to go behind the reasoning of the Supreme Court, which is by definition the correct statement of the law.[25]In the circumstances, the timing of the skeleton argument is an explanation for the timing of the withdrawal on the morning of the hearing. It is also right to acknowledge that this was a late withdrawal, but it is still better that parties do the right thing than plough on. In making this finding, I recognise that there is inevitable frustration for a Respondent that continues to face proceedings which are then withdrawn at the door of the Tribunal. I am not immune to that point and recognise the difficulty.[26]The Tribunal is a limited costs jurisdiction and provides me with a discretion as to whether or not I make an award of costs. I have not treated any particular point as determinative and have weighed matters up carefully.[27]Therefore I conclude:a. The threshold for costs is met for the making of a costs award under Rule 74(2)(b) – prospects of success.b. The threshold for costs is not met under Rule 74(2)(a) – conduct in bringing the proceedings and the way proceedings have been conducted.c. I do not exercise my discretion in favour of making an award of costs.d. I therefore do not go on to assess the level of costs incurred or whether to take the Claimant’s means into account.[28]The application for costs is refused.