Mr A Morris v Manchester University NHS Foundation Trust: 2403479/2023
EMPLOYMENT TRIBUNALS
Case No 2403479/2023
Between
Mr A MorrisClaimantManchester University NHS Foundation TrustRespondent
Before
Employment Judge LeachIn person for claimantMs M Martin (instructed by counsel) for respondentDate 15 May 2026
JUDGMENT
[1]The respondent’s application for an order striking out the complaint that there were unauthorized deductions from the claimant’s wages is refused.[2]The respondent’s application for an order that the claimant pay the costs wasted by the postponement and relisting of this hearing succeeds to the extent that the claimant is ordered to pay costs of £1500. Payment must be made by 30 November 2026 latest.
REASONS
a. A. Strike out application.(1) By letter dated 7 May 2026, the respondent applied for a strike out order under Rule 38 of the Employment Tribunal Rules of Procedure 2024 (Rules) on the grounds that the claimant had not complied with case management orders made at the hearing on 5 December 2025 and his conduct of the proceedings had been scandalous, vexatious or unreasonable.(2) Ms. Martin confirmed to me that the application was for a strike out of the claim-ant’s complaint of unauthorised deductions from wages, not a strike out of the whole claim. Case Number: 2403479/2023(3) For reasons given orally at the hearing (and summarised below) I refused the application for strike out.(4) Summary: - (i) The claimant, in not complying with the orders of the Tribunal, had conducted himself unreasonably. (ii) As a result of the claimant’s non-compliance, a fair trial was not pos-sible today. (iii) However, given. a. the apparent strength of the claimant’s unauthorised deductions complaint,b. that less draconian options were potentially available (a possi-ble unless order and a possible costs order). I decided it would not be proportionate to make an order striking out the complaint.(5) Should either party require written reasons beyond this summary as to why I did not strike out the complaint, they may request them within 14 days of the date that this judgment is sent to the parties. B. Costs Application(6) The respondent applied for an order that the claimant pay the respondent’s costs wasted as a result of this hearing being postponed. I announced my decision on the application at the hearing and told the parties that I would pro-vide my reasons in writing. Legal Framework(7) The power to award costs is in the Employment Tribunal Rules of Procedure of 2024 (“Rules”) at Part 13.(8) Rule 73(1)(a) 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 represented by a legal representative”.(9) The circumstances in which a Costs Order may be made are set out in rule 74. The relevant provision here is rule 74(2) which provides as follows: “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. Case Number: 2403479/2023(10) The procedure by which the application of costs should be considered is set out in rule 75 and the amount which the Tribunal may award is governed by rule 76. In summary rule 76 empowers a Tribunal to make an order in respect of a specified amount not exceeding £20,000, or alternatively to order the paying party to pay the whole or specified part of the costs with the amount to be de-termined following a detailed assessment.(11) Ms. Martin told me that the costs application was limited to £6500. There would not therefore be a requirement for a detailed assessment of costs under Rule 76(1)(b)(i) of the Rules.(12) Rule 82 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.”(13) It follows from these rules that the Tribunal must go through a three-stage pro-cedure (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 74; if so, the second stage is to decide whether to make an award, and if the Tribunal does decide to make an award, 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.(14) The case law on the costs powers 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.(15) An award of costs must be compensatory, not punitive; to compensate the party in whose favour the order is made and not to punish the paying party.(16) If there has been unreasonable conduct there is no requirement for the Tribunal to identify a precise causal link between that unreasonable conduct and any specific items of costs which have been incurred: McPherson v BNP Paribas (London Branch) [2004] ICR 1398. However there is still the need for some degree of causation to be taken into account as the Court of Appeal pointed out in Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case, and in doing so to identify the conduct, what was unreasonable about it and what effects it had.”(17) As to the question of means or ability to pay, in Vaughan v London Borough of Lewisham & Others (No. 2) [2013] IRLR 713 (“Vaughan”) the EAT said this in paragraph 28: Case Number: 2403479/2023 “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”. Reasons for decision to award costs(18) I decided to make an order requiring the claimant to pay costs limited to £1500. These are my reasons:- (i) By letter dated 12 August 2025, the claimant applied for a hearing to determine the Wages Complaint at a preliminary hearing. (ii) A preliminary hearing (for case management) took place on 5 De-cember 2025. Employment Judge Kenward explained to the claim-ant why he could not determine the complaint at that hearing but did exactly what the claimant applied for; he listed this hearing to deter-mine the wages complaint. (iii) Having succeeded in his application, the claimant then (for whatever reason) decided that he did not want the hearing to proceed, that he had been treated unfairly, that the Wages Complaint could not be separated from his complaints of race discrimination. His actions then focused on complaints and appeal; he ignored the case man-agement orders that Employment Judge Kenward had made; he ig-nored the correspondence from Mills and Reeve that was written to ensure preparation for this hearing. (iv) The claimant attended this hearing initially (and for some time into it) insistent that it should be postponed and then of the view that it should go ahead to address not just the wages complaint but the complaint of race discrimination in relation to withholding of wages, awarding compensation for injury to feelings and interest under the Equality Act 2010. (v) The claimant’s conduct as described above; particularly in choosing not to comply with orders made and not to engage, cooperatively, in preparing for this hearing, ( a hearing that he had applied for) falls within the terms of Rule 74(2)(a) of the Employment Tribunal Rules of Procedure 2024 (Rules). The claimant has behaved disruptively and unreasonably in the conduct of this part of the proceedings. (vi) That means that I must consider making a costs order. That takes me to the second stage in the 3 stage decision making process noted above. (vii) I decided it was appropriate to make a costs order. The claimant’s disruptive conduct has meant that the hearing of the Wages Com-plaint has been postponed to another date. A day’s hearing is lost. Case Number: 2403479/2023 Further, the respondent should not have been put to the cost of the correspondence with the claimant, chasing information, asking the claimant to comply with the orders that Employment Judge Kenward had made and making applications that have been considered to-day. (viii) I also note that in deciding not to strike out the claimant’s claim (even though it was not possible to have a fair trial of the Wages Complaint today) I decided that more proportionate and less draconian options were available. One of those was a costs order. (ix) Whilst the general rule in Employment Tribunals is that each party bears their own costs, I decided that these circumstances fell within the exception provided by the Rules. I note particularly:- a. This jurisdiction is generally one where parties can gain access to justice without the risk of a costs order. But for the jurisdiction to operate effectively it requires parties to comply with orders, to comply with the Overriding Objective. b. Disruptive conduct such as this leads to hearings being post-poned, the Tribunal’s long lists of cases growing ever longer; the Tribunal’s administrative resources being taken up in ad-dressing conduct; thereby taking resources away from other cases, leading to more delay in addressing correspondence from parties and listing hearings.c. Where parties engage in disruptive conduct seemingly without consequence, it can encourage further disruption and diminish respect for the Employment Tribunals. Where parties see their opposing party in a case behave disruptively without conse-quence then that also leads to a diminution of respect for Em-ployment Tribunals.(19) Ms. Martin told me that the respondent’s costs of this wasted hearing were £6500. She was unable to provide me with any detailed breakdown except in relation to her own fees of today being £2500.(20) The claimant told me that he had no money to pay a costs order.(21) I decided to make a costs order requiring the claimant to pay the respondent’s costs of £1500. I decided upon this figure, confident that at least £1500 in costs would be completely lost as a result of the postponed final hearing. Some of the £6500 would have been incurred anyway. (Ms. Martin accepted as such). Some, but not all work will need to be done again. I considered making the order in the sum of £2500 but it was not clear from the information provided whether the respondent would incur a full fee again for Ms. Martin or a refresher fee.(22) The order requires the claimant to pay these costs by 30 November 2026. I have deliberately chosen this date as shortly after the postponed final hearing. From the information I have seen I expect the claimant to recover more than this amount in unpaid wages. The claimant will therefore at that stage have the ability to pay. Case Number: 2403479/2023 Conclusion(23) The claimant is ORDERED to pay the respondent on or before 30 Novem-ber 2026, costs of £1500. Approved by: