Employment Judge AinscoughNot in attendance for claimantNot in attendance for respondentDate 29 September 2025
JUDGMENT
The respondent’s application for a costs order is refused.
REASONS
[1]On 26 November 2024 the claimant withdrew her claim against the respondent.[2]The respondent made an application for a costs order on 10 December 2024 in accordance with rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The Tribunal agreed to deal with the application without a hearing following receipt of a written response from the claimant dated 20 February 2025.[3]The matter was listed in chambers on 31 January 2025. An intermediary was in place to support the claimant in these proceedings. The Tribunal was unable to instruct an intermediary to assist the claimant with responding to the respondent’s application before 31 January 2025 and as a result that hearing was postponed.[4]The matter was relisted in chambers on 30 June 2025. However, on that date the Tribunal had no record of the respondent’s application and the matter was postponed until 27 August 2025 following receipt of the respondent’s costs application dated 10 December 2024. The Proceedings[5]The claimant began ACAS Early Conciliation on 18 January 2023. The respondent participated in that process. The parties were unable to resolve the matter and a certificate was issued on 1 March 2023. The claimant submitted the ET1 form on 21 March 2023 and brought complaints of unfair dismissal, disability discrimination, failure to pay holiday pay, arrears of pay and breach of contract.[6]The respondent submitted a response on 28 April 2023.[7]Due to a technical problem the attachment the claimant served with the ET1 form was not sent to the respondent. As a result, on 12 May 2023 the Tribunal extended time for the response by a further 28 days.[8]The matter was listed for a case management preliminary hearing on 19 June 2023.[9]The matter as also listed for a final hearing from 13 November 2023 – 15 November 2023.[10]At the case management preliminary hearing on 19 June 2023 the claimant withdrew the complaints of unfair dismissal, holiday pay and unlawful deduction from wages. The complaints of direct disability discrimination and breach of contract were maintained.[11]The matter was listed for a preliminary hearing on 31 August 2023 to determine the issue of disability.[12]On 10 July 2023 the respondent submitted an amended grounds of resistance.[13]At the preliminary hearing on 31 August 2023, the Tribunal postponed the determination of the disability issue until the final hearing because the claimant had misunderstood the order to disclose her medical records and did not receive the written record of the case management preliminary hearing until 14 July 2023.[14]On 7 November 2023 the claimant applied to attend the final hearing by CVP by way of an adjustment to accommodate her ill health. On 9 November 2023 the Tribunal refused the claimant’s application due to the absence of supporting medical evidence.[15]On 13 November 2023 the claimant failed to attend the first day of the final hearing due to ill health. The Tribunal was informed of the claimant’s non-attendance on the evening of 12 November 2023.[16]The matter was listed for a preliminary hearing on 26 April 2024 to determine the issue of disability. The final hearing was relisted from 25 November 2024 – 27 November 2024.[17]On 16 April 2024 the claimant applied to attend the preliminary hearing by CVP by way of an adjustment to accommodate her ill health. On 22 April 2024 the Tribunal agreed that the claimant could attend by CVP.[18]On 25 April 2024 the claimant confirmed her attendance at the preliminary hearing. However, at 10.10am on 26 April 2024 the claimant’s mother emailed the Tribunal to inform the Tribunal of the claimant’s non-attendance due to ill health. The claimant was asked to inform the Tribunal if she could attend the hearing with further adjustments but did not provide a response.[19]As a result, the Tribunal issued an Unless Order that the claim would be struck out unless the claimant confirmed that she wished to proceed with her claim. The Tribunal listed the matter for a ground rules hearing on 22 May 2024 to discuss what adjustments may be needed to allow the claimant to participate in the proceedings.[20]On 3 May 2024 the claimant provided medical evidence in support of her ill health by way of explanation for her lack of attendance. The Tribunal determined that this correspondence amounted to material compliance with the Unless Order. The claimant was ordered to provide medical evidence in support of any non-attendance at the case management preliminary hearing on 22 May 2024.[21]The claimant did not provide any medical evidence and did not attend the case management preliminary hearing on 22 May 2024 or apply to postpone the hearing. The Tribunal determined that an intermediary should be instructed to assess the claimant and identify any adjustments required to assist the claimant to attend the final hearing.[22]An intermediary assessment with the claimant took place via video on 17 June 2024. The intermediary report of 24 June 2024 recommended the use of an intermediary to assist the claimant at all stages of the proceedings. The intermediary also recommended that the Tribunal list a ground rules hearing prior to the start of the final hearing.[23]A ground rules hearing was listed for 30 October 2024 by CVP.[24]The claimant was unable to attend this hearing despite the attendance of an intermediary. The intermediary in attendance at that hearing was not the same intermediary who had assessed the claimant. The Tribunal determined that the final hearing should be shortened and converted to a preliminary hearing to determine the issue of disability. Orders were made to ensure the claimant was assisted by the intermediary service before and during the next hearing.[25]On 26 November 2024 the claimant emailed the Tribunal to withdraw her claim and did not attend the preliminary hearing. The respondent was in attendance and asked the Tribunal to make orders for the determination of an application for costs.[26]The Tribunal made such orders and determined that the application would be determined in chambers without the need for the attendance of the parties. Respondent’s Application[27]The respondent made an application for a costs order in accordance with rule 76 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 on the basis that the claimant has:(a) acted vexatiously, abusively, disruptively or otherwise unreasonably in the way that the proceedings have been conducted (rule 76(1)(a); or(b) caused a hearing to be postponed or adjourned less than 7 days before the hearing date (rule 76(1)(c)).[28]The respondent asserted that the claimant behaved unreasonably and disruptively because the claimant failed to attend five hearings, two of which were ground rules hearings and one of which was attended by an intermediary. The respondent also asserted that three of the hearings were by CVP to assist the claimant with her attendance. It is the respondent’s position that the claimant did not provide medical evidence to support her non-attendance.[29]The respondent has applied for the costs incurred at the hearings listed 13 November 2023 – 15 November 2023, 26 April 2024, 22 May 2024 and 26 November 2024 – 27 November 2024 at which Counsel attended. Claimant's Response[30]In response the claimant submitted that the cause of the difficulties in taking part in proceedings is as a result of Autism, COPD and fibromyalgia. The claimant contended that she could only take part in the proceedings by submitting written representations and answering questions in writing.[31]The claimant has relied on the Equal Treatment Bench Book and the suggested adjustments to be made in proceedings if a participant is autistic.[32]The claimant also submitted that her attendance was hampered by the attendance of a different intermediary to the one that conducted the assessment.[33]The claimant provided details of her financial means and submitted that she would not be in a position to pay any award of costs. Relevant Legal Principles[34]Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 is now rule 74 of the Employment Tribunal Rules of Procedure 2024 and states: “When a costs order or a preparation time order may or must be made (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 the relevant hearing begins. (3) A Tribunal may also make a costs order or preparation time order (as appropriate) on the application of a party where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned.”[35]Rule 75 states: “Procedure(1) A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties.(2) The Tribunal must not make a costs order or a preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order).”[36]Rule 82 provides that the Tribunal can have regard to the paying party’s ability to pay, but the Tribunal is not obliged to take this into account when determining whether to make a costs order.[37]In Lodwick v Southwark London Borough Council 2004 ICR 884, CA, the Court of Appeal determined that at both stages of the Tribunal’s discretion to make a costs award, the fundamental principle that costs awards are compensatory not punitive, must be observed.[38]In AQ Ltd v Holden (2012) IRLR 648, EAT, the Employment Appeals Tribunal determined that a litigant in person should not be judged by the same standards as a professional representative.[39]In Garnes v London Borough of Lambeth and another (1997) EAT1237/97, the Employment Appeal Tribunal determined that the claimant had acted disruptively by seeking multiple adjournments, not attending hearings that he objected to being held and stating he was not ready to proceed during any part of a hearing listed for 15 days.[40]In Yerrakalva v Barnsley Metropolitan Borough Council and others (2012) ICR 420, CA the Court of Appeal said a Tribunal must look at the totality of the circumstances and reiterated that costs in the Employment Tribunal are the exception rather than the rule.[41]In Dyer v Secretary of State for Employment (1983) EAT 183/83, the Employment Appeal Tribunal determined that “unreasonable” did not mean similar to vexatious but rather should be interpreted within the ordinary meaning of the word which according to the Collins Dictionary is “acting at variance with or contrary to reason; not guided by reason or sound judgment; irrational.”[42]In McPherson v BNP Paribas (London Branch) 2004 ICR 1398, CA, the Court of Appeal determined that an award for costs incurred does not have to be attributable to the offending conduct. A Tribunal must look at the nature, gravity and effect of the conduct when considering whether to exercise the discretion. Relevant Issues[43]The issues for the Tribunal to determine are as follows: a) Whether the claimant:(i) has acted unreasonably(ii) caused a hearing to be postponed or adjourned less than 7 days before the hearing date b) If so, the Tribunal must consider if it is appropriate to exercise the discretion of the Tribunal to make a costs order. c) If so, how much should the Tribunal award? Discussion and Conclusions Are the grounds made out? Unreasonable conduct/ Caused a hearing to be postponed or adjourned less than 7 days before the hearing date
Discussion and Conclusions
[44]The respondent contends that the claimant’s failure to attend hearings has led to the respondent reasonably and necessarily incurring costs of preparing for and attending each hearing that was listed.[45]The respondent has submitted that the late notification of the claimant’s nonattendance on 13 November 2023 meant it had to incur Counsel’s fee. In addition, a similar fee was incurred by the claimant’s non-attendance on 26 April 2024 because the claimant had confirmed on 25 April 2024 that she would be in attendance.[46]The respondent also submitted by failing to notify the Tribunal at all about the non-attendance of the claimant on 22 May 2024 led to the respondent incurring Counsel’s fee.[47]Finally, the respondent contended that the claimant, knowing she had been unwell for many weeks, left it until the first day of the preliminary hearing on 26 November 2024 to withdraw her claim causing the respondent to incur Counsel’s fee.[48]The Tribunal has determined that the claimant’s conduct was unreasonable and led to all hearings being postponed or adjourned less than 7 days before the hearing date.[49]On each occasion the claimant left it until the last possible moment to inform the Tribunal and the respondent that she would not be in attendance. On one occasion, the claimant actually confirmed she would be in attendance and did not attend and on another simply did not attend without any explanation.[50]The claimant also failed to provide adequate medical evidence so that the Tribunal could proactively case manage the matter.[51]The claimant cannot have been guided by reason or sound judgment in behaving in this way.[52]The Tribunal is used to dealing with parties who suffer from ill health. When a party provides sufficient medical evidence, the Tribunal can agree to stay the matter until the party has sufficiently recovered to take an active part in the proceedings.[53]Equally, the provision of medical evidence also assists the Tribunal in making the necessary adjustments to allow the party to participate. If the claimant had attended either of the ground rules hearings (at which no evidence is taken) such adjustments could have been discussed and applied to this matter. Should the Tribunal exercise the discretion to make a costs award?[54]Any award for costs should be compensatory and not punitive. Costs awards in the Tribunal are the exception rather than the rule.[55]The Tribunal is mindful that the claimant is a litigant in person and did not have access to professional advice about what to do in circumstances where she was unable to participate because of her ill health.[56]The claimant proactively sought to change the format of the first hearing but was unaware of the requirement to submit supporting medical evidence and was unable to attend in person.[57]By April 2024 the claimant had been told she could apply for a postponement but insisted that a postponement would not be in her best interests and that the hearing should go ahead. The correspondence prior to this point had revealed that the claimant had been hospitalised and was clearly in no fit state to attend or make an assessment of her ability to attend.[58]It appears that the claimant was in a similar state in May 2024 as there was no notification of the non-attendance.[59]The claimant co-operated with the intermediary process in June 2024. It is clear that due to the limits of that service, the lack of consistency in the particular intermediary, similarly affected the claimant’s ability to attend the hearing on 26 November 2024.[60]The Tribunal has determined that the claimant wanted to take part in these proceedings and did what she could to adjust the process to attend. However, on each occasion her ill health stopped her from doing so and she was not privy to professional advice about proactively managing her ill health.[61]The respondent reasonably and necessarily incurred Counsel’s fees for those hearings.[62]However, having considered the totality of the claimant’s unreasonable behaviour, the Tribunal will not exercise the discretion to make an award for costs.[63]This matter is not analogous with the Garnes. In that case the claimant refused to attend hearings on a point of principle not because of ill health. In this matter, the claimant’s health prevented her from properly assessing her abiity to attend hearings and attending the hearings.[64]The intermediary report obtained in June 2024 confirmed the extent of the claimant’s difficulties such that the claimant needed assistance from an intermediary at every stage of the proceedings. It is therefore, understandable that whilst suffering from ill health but also wanting to participate in the proceedings, the claimant was incapable of objectively assessing her ability to participate in the proceedings to take the necessary action to prevent the respondent incurring costs of the aborted hearings.[65]The respondent’s application is therefore, refused. Approved by