Case No 2405172/2017Venue ExeterHearing 12 March 2018
Between
Mr C WarwickClaimantPatterson LawRespondent
Before
Employment Judge N J RoperIn person for claimantMiss S Hornblower (instructed by Counsel) for respondentDate 9 November 2018
JUDGMENT
The Claimant’s complaint of unfair dismissal is dismissed upon withdrawal by the Claimant as the Claimant does not have the necessary qualifying service to bring such a complaint as required pursuant to section 108 of the Employment Rights Act 1996. The claimant’s remaining claims are continuing. JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD AT Exeter ON 12 March 2018 EMPLOYMENT JUDGE N J Roper Representation For the Claimant: In person For the Respondent: Miss S Hornblower of Counsel RESERVED JUDGMENT The judgment of the tribunal is that:[1]The correct name of the respondent is Patterson Law Limited and the record is amended accordingly; and[2]The claimant was not a disabled person at the material times and his claims of disability discrimination are dismissed; and[3]The claimant’s application to amend his claim to include direct sex discrimination is refused; and[4]The respondent’s counterclaim is dismissed on withdrawal by the respondent; and[5]The claimant’s remaining claim for breach of contract will proceed in accordance with the attached case management orders.
REASONS
[1]This is the judgment following a preliminary hearing to determine whether the claimant was a disabled person at the material times, and whether (and if so when) the respondent knew of the claimant’s disability. This judgment also deals with the claimant’s application to amend his originating application. There was no need to consider the respondent’s application for strike out and/or deposit orders for any remaining claims.[2]I have heard from the claimant, and from Ms Zoe-Katarina Ling on his behalf. I was also asked to consider statements from each of Ms R Naughton and Mrs R Gibbs-Pearson on behalf of the claimant, but I can only attach limited weight to these because they were not here to be questioned on this evidence. For the respondent I have heard from Ms C Hudson, Mr D Smith and Ms E. Patterson.[3]The claimant’s credibility. I did not find the claimant to be a credible witness for the following reasons. In general terms the weight of evidence was against the claimant, whereas the evidence of the respondent’s witnesses was both measured and consistent with the contemporaneous documents. On the other hand, on a number of occasions the claimant’s evidence was not consistent with the contemporaneous documents, and he made a number of assertions which were far-fetched to say the least. As is explained in more detail below, on one occasion the claimant asserted that the respondent had deliberately created a role based in Nottingham simply in order to allow his alleged comparator Rebecca Taylor the opportunity to work remotely, when he was denied the same opportunity. I find that to be an absurd suggestion given that Rebecca Taylor resigned her employment on moving to Nottingham for family reasons, and the respondent then allowed her to work remotely in order to retain her services. More importantly however is the fact that I find that the claimant deliberately and dishonestly altered the content of a Study Aid and Study Strategies Report from Staffordshire University to assist a subsequent application for assistance in connection with his CILEx Legal Executive exams. In addition, despite clear explanation at a previous case management preliminary hearing, and clear orders as to what information and documents the claimant was required to disclose for this hearing, the claimant failed to comply fully with those orders. For all of these reasons whenever there was a conflict between the claimant’s evidence and/or assertions and the respondent’s evidence, I preferred the evidence of the respondent.[4]Accordingly I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.[5]Background Facts: The respondent company is a firm of solicitors which specialises in the defence of criminal motoring offences. It has two directors, Emma Patterson and Dominic Smith from whom I have heard, and it employs approximately 37 staff. The claimant commenced work for the respondent on 18 July 2016 as a Case Progression Officer (CPO). His duties eventually included advising clients, and corresponding with clients, the Police, the Court Service and the CPS, preparing briefs to counsel and general file management. The respondent's office is in Newton Abbot in South Devon, and the claimant lived away from Newton Abbot which required a daily commute of approximately one hour each way. The claimant’s partner Ms Ling, from whom I have heard, also worked for the respondent.[6]The claimant was a difficult and demanding employee who took up a lot of management time. He had a poor sickness record, and his sickness absence often coincided with his partner’s absences from the office. He had repeated late attendance, and he had a number of disagreements with work colleagues. His general performance required higher levels of supervision than ordinarily should have been the case. He would repeatedly express opposition to the respondent’s methods of working and was very demanding. He often asked for pay rises, and for payment towards his Chartered Institute of Legal Executives (CILEx) qualification, which he had chosen to undertake voluntarily, and which was not a requirement of his role with the respondent. He would argue both verbally and via emails with the respondent’s directors about these topics, and complain to other members of staff if his demands were not met. He would return to the same subjects weeks after the matter had been concluded to continue to argue the same points. This resulted in almost daily meetings and discussions with and/or about the claimant, and not surprisingly the respondent became increasingly exasperated.[7]One issue which was repeatedly discussed was that of remote working. In about early 2017 one of the claimant’s colleagues, namely Rebecca Taylor, resigned her employment on moving to Nottingham for family reasons. She was a valued employee and the respondent did not wish to lose her services. The respondent persuaded her to withdraw her resignation and she was permitted to work remotely, not least because it was impossible to commute from Nottingham to South Devon on a daily basis. The claimant did not enjoy his daily commute of one hour each way, and he made a number of requests to the respondent to be allowed to work remotely from home. Mr Smith discussed the issue of remote working with the claimant on a number of occasions. At no time did the claimant suggest this was required because of any health difficulties. Mr Smith remained opposed to the request, partly because of the expense, and partly because he wished to ensure that there was proper supervision of the claimant’s work. This issue arose in December 2016, January 2017, May 2017, and July 2017. Mr Smith decided that it was right to refuse the request for remote working because of the respondent’s serious concerns regarding the claimant’s work. Mr Smith and the claimant exchanged emails on 4 August 2017, and Mr Smith explained his reasons for refusing the request.[8]On 4 August 2017 the claimant stated that he wished to raise a formal grievance, but resigned later that day. The claimant’s resignation was accepted, and there was then a debate about the extent to which the claimant was required to work his three months’ contractual notice. By 8 August 2017 the relationship had broken down irretrievably, and the claimant posted a number of apparently offensive Facebook posts, and the respondent decided to dismiss the claimant for gross misconduct with effect from 8 August 2017.[9]On 18 September 2017 the claimant issued these proceedings claiming unfair dismissal and disability discrimination, relying on post-traumatic stress disorder (PTSD) as the relevant disability. The unfair dismissal claim was dismissed because the claimant had insufficient service to bring that claim. A case management preliminary hearing then took place on 8 January 2018 and the disability discrimination claims were identified as being for harassment; direct discrimination; discrimination arising from disability; and in respect of an alleged failure by the respondent to make reasonable adjustments. The claimant also pursues a wrongful dismissal claim in respect of his notice period which is not the subject of this judgment. The claims are all resisted by the respondent who does not accept that the claimant was disabled. The claimant has since made an application to amend his claim to include a claim of direct sex discrimination, and this preliminary hearing was listed to determine whether the claimant was a disabled person at the relevant times; whether the respondent had the requisite knowledge of that disability; to consider the contested application to amend the claim; and to consider whether any surviving claims should be struck out as having no reasonable prospect of success, or be subject to the payment of a deposit order as having little reasonable prospect of success. The respondent had also made an employer’s counterclaim, which is now withdrawn.[10]The Disability Issue: In order to assist the tribunal to determine whether the claimant was a disabled person at the relevant times, he was ordered to produce copies of his GP medical records, and any other reports upon which he wished to rely, and to prepare an "impact statement" setting out the effect which the alleged disability is said to have on his normal day-to-day activities. He has failed to do so on anything approaching a convincing basis. His GP notes have not been disclosed, and the claimant suggests that this is because they may have been mislaid between different surgeries. His impact statement does not address any adverse affect on his normal day-to-day activities, other than to make simplistic general comments such as: "the symptoms continue to this day and have an impact on my daily life however they are much more manageable unless I am encountering a period of high stress and demand”.[11]The available medical evidence which I have seen is as follows. In late 2011 whilst he was at Staffordshire University the claimant applied for financial assistance in connection with his studies, and an educational psychologist prepared a diagnostic assessment report on 10 January 2012. The report notes "This assessment was undertaken for educational study purposes and is not appropriate for any other situation or environment." It also notes: "Chris did not report any current health problems that may affect his study and did not recall any sensory or developmental difficulties as a child". The report noted: "Chris presents a profile consistent with specific learning difficulties based on a weakness with his short-term memory in relation to his underlying abilities.” A letter dated 28 March 2012 from Mr Burrows, a psychological well-being practitioner, also confirms that the claimant attended a mental health assessment on 16 January 2012 when he received two treatment sessions before being “stepped up” for cognitive behavioural therapy (CBT).[12]The claimant then had a further assessment in April 2012, which resulted in a Study Aid and Study Strategies Report for the purposes of his studies at Staffordshire University. The purpose of the report was to identify any additional expenditure the claimant was obliged to incur as a result of any disability whilst attending his course. The report recorded that the claimant had reported suffering from dyslexia (specific learning difficulty), and PTSD. Dyslexia was said to have been evidenced by the educational psychologist’s report noted above. The PTSD relied upon the letter from Mr Burrows and the referral for CBT. The report records the claimant had described his symptoms of PTSD as having difficulty sleeping, experiencing nightmares and flashbacks, and feeling severe anxiety in crowds working social situations. The claimant subsequently relied upon this report during his employment with the respondent when seeking additional time to complete his CILEx examinations. It was at this stage that the claimant changed the conclusions of the report. He changed the diagnosis of dyslexia to one of ASD, which presumably he felt better served his purposes at that stage. He was unable to provide a satisfactory explanation for so doing, and I find that he deliberately and dishonestly doctored the findings of this report.[13]I have seen a statement of fitness for work dated 30 April 2012 which refers to the claimant suffering from "anxiety states". A further statement dated 12 June 2012 refers to "anxiety state - ?PTSD". This follows a letter dated 8 May 2012 in which the claimant’s GP Dr Damam suggests: ”On review of his symptoms we think Mr Warwick is most likely to be suffering from post traumatic stress disorder. We have requested the Healthy Minds Network to consider a referral to a psychiatrist for a formal diagnosis for his above symptoms. He is currently on the waiting list for CBT …” A further sickness certificate dated 27 July 2012 refers to anxiety, and a letter from his GP Dr Awan on 2 May 2013 records: "This is to confirm that Mr Warwick has been seen in the surgery with symptoms of PTSD which have been affecting him for a number of weeks …” The claimant has also adduced an undated letter from Dr Hopes suggesting that the claimant had been seeking help for "mental health issues”. In addition I have seen one recent extract only from the claimant’s GP notes dated 10 August 2017 which suggests that the claimant was "struggling with his mental health - feels PTSD symptoms have worsened with flashbacks and nightmares …” This was immediately after his dismissal on 8 August 2017. All of this information is therefore before the claimant commenced employment with the respondent, and the one instance immediately after his employment was terminated. The information available to the respondent during the claimant’s period of employment, which is the relevant period for the purposes of his claims, is different, and is as follows.[14]Before commencing work with the respondent, the claimant completed a job application questionnaire in which he was asked: "Is there anything concerning your medical history or state of health that is relevant to your application?" The claimant answered in the negative. He had a large number of sickness absences during his employment with the respondent, none of which related to PTSD or other mental health issues. On 31 January 2017 the claimant sent an email to Ms Naughton of the respondent, who dealt with their HR issues. He stated in that email: “This email is private and confidential and the contents of which I do not want discussing or passing on to anyone else within the company … I suffer from PTSD - nightmares, flashbacks, cold sweats and severe anxiety … I can deal with most of that fine, I've learned to cope”. In addition, on 24 March 2017 the claimant sent an email to Ms Hudson, from whom I have heard, attaching the educational psychologist’s assessment from 2012, the contents of which the claimant had altered himself. He referred to the fact that he was suffering with issues from ASD and dyslexia and wanted the respondent to agree to allow him to attend extra study sessions for the purposes of his CILEx exams.[15]The claimant asserts that as a result of these emails, and other discussions, that his PTSD was common knowledge throughout the office and was discussed repeatedly. I accept the respondent’s evidence that the contrary is true. Ms Naughton left the respondent’s employment shortly after that email in January 2017, and I accept the respondent’s evidence that she must have respected the claimant’s request for that email to be kept strictly confidential, and that no one else in the respondent knew about it. I also accept the respondent’s evidence that there were no discussions, and it was not common knowledge, that the claimant suffered from PTSD or any other mental health issues. It was never raised by the claimant despite continual discussions about the claimant’s working practices, sickness absences and difficulties. The only evidence of the matter having been raised with the respondent is effectively the email to Ms Hudson on 24 March 2017 which was in the context of the claimant’s discussions with CILEx and his request to attend further training.[16]Having established the above facts, I now apply the law.[17]The claimant alleges discrimination because of his disability under the provisions of the Equality Act 2010 (“the EqA”). The claimant complains that the respondent has contravened a provision of part 5 (work) of the EqA. The claimant alleges direct disability discrimination, discrimination arising from a disability, failure by the respondent to comply with its duty to make adjustments, and harassment.[18]The protected characteristic relied upon is disability, as set out in section 6 and schedule 1 of the EqA. A person P has a disability if he has a physical or mental impairment that has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities. A substantial adverse effect is one that is more than minor or trivial, and a long-term effect is one that has lasted or is likely to last for at least 12 months, or is likely to last the rest of the life of the person.[19]As for the claim for direct disability discrimination, under section 13(1) of the EqA a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[20]As for the claim for discrimination arising from disability, under section 15 (1) of the EqA a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. This does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[21]The provisions relating to the duty to make reasonable adjustments are to be found in sections 20 and 21 of the EqA. The duty comprises of three requirements, of which the first is relevant in this case, namely that where a provision criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, there is a requirement to take such steps as it is reasonable to have to take to avoid that disadvantage. A failure to comply with this requirement is a failure to comply with a duty to make reasonable adjustments. A discriminates against a disabled person if A fails to comply with that duty in relation to that person.[22]Under paragraph 20(1)(b) of Schedule 8 of the EqA A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know –(a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question;(b) … that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.[23]The definition of harassment is found in section 26 of the EqA. A person(a) (A) harasses another(b) (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, and humiliating or offensive environment for B.[24]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.[25]Section 120 of the EqA confers jurisdiction on claims to employment tribunals, and section 123(1) of the EqA provides that the proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable. Under section 123(3)(a) of the EqA conduct extending over a period is to be treated as done at the end of that period.[26]I have been referred to and have considered the cases of Goodwin v The Patent Office [1999] IRLR 4 EAT; Gallop v Newport City Council [2014] IRLR 211 CA; Selkent Bus Co Ltd v Moore [1996] ICR 836; Hammersmith and Fulham Borough Council v Jesuthasan [1998] ICR 640; Thomson v East Dunbartonshire Council & Anor UKEATS/0049/13/jw; us CIC UKEAT/0510/13/JOJ; British Coal v Keeble [1997] IRLR 336 EAT; Robertson v Bexley Community Service [2003] IRLR 434 CA.[27]Conclusions on Disability: My conclusions on the disability issue are as follows. The respondent asserts that the claimant has failed to prove any diagnosis of PTSD, which is the disability upon which he relies. I agree with that general assertion, but nonetheless a person can meet the definition of disability without any specific diagnosis. The test requires a physical or mental impairment which has a substantial and long-term adverse affect on normal day-to-day activities. Despite the absence of a formal diagnosis, and the absence of the claimant’s medical records, it seems likely on the balance of probabilities that the claimant has suffered with some mental health symptoms which were recorded from early 2012. There does appear to be evidence of anxiety related issues, and there is reference to treatment for mental health issues and CBT. I am satisfied for this reason that claimant has suffered from a mental impairment both before and immediately after his employment with the respondent.[28]However, there is no cogent evidence, and I cannot find, that during the period of his employment with the respondent the claimant suffered from any impairment which had a substantial adverse affect on his normal day-to-day activities. Despite repeated and continual discussions about his work record and working practices, the claimant never reported that he had any mental illness, nor raised with the respondent the possibility of him suffering any adverse affects because of any mental impairment. The possibility of any adverse affect arising from any impairment simply did not feature during the claimant’s progressively difficult period of employment.[29]In circumstances where I find that there was no substantial adverse affect on the claimant’s normal day-to-day activities during his period of employment with the respondent, I find that the claimant was not a disabled person within the meaning of the statutory definition at the relevant times. Accordingly I hereby dismiss his disability discrimination claims.[30]In any event, even if the claimant had met the statutory definition of disability, I would have dismissed his claims because of the lack of requisite knowledge by the respondent of any disability and/or any alleged substantial disadvantage. The direct disability discrimination claim is on the basis that the claimant was forced to resign (and/or was dismissed for a false reason) because of the refusal to allow remote working. That claim must fail where the respondent did not know that the claimant was disabled because the dismissal cannot in those circumstances be because of the claimant’s disability. The claims for discrimination arising from disability, and for reasonable adjustments, both relate to the respondent’s refusal to allow remote working. Throughout all of the discussions concerning that aspect the claimant never raised the suggestion that he required remote working because of any illness. The respondent was unaware of any disability and in particular unaware of any alleged substantial disadvantage caused by that disability. Those two claims must fail for that reason. Finally, with regard to the harassment claim, despite being ordered to do so the claimant has failed to particularise the extent of his harassment claim. Originally it was loosely related to repeated discussions and requirements to work at the office despite requesting remote working to alleviate the symptoms of PTSD, and failure to allow the claimant to withdraw his resignation. In circumstances where the respondent was not aware of the alleged disability, or the alleged symptoms, any such conduct cannot be said to be related to the claimant’s protected characteristic namely his alleged disability.[31]In conclusion therefore the claimant's claims for disability discrimination are all dismissed.[32]Application to Amend: I now turn to the claimant’s application to amend his claim to include a claim for direct sex discrimination. That application was opposed by the respondent as being an entirely new claim and one which is now presented out of time. The proposed new claim is on the basis that the respondent’s decision to allow Rebecca Taylor to enjoy remote working, when the claimant was not allowed to do so, is an act of direct sex discrimination. Rebecca Taylor is relied upon as the claimant’s actual comparator.[33]In deciding whether to allow such an amendment one must consider the balance of prejudice, injustice and hardship between the parties. The respondent asserts that it is an entirely new claim and not the re-labelling of an existing claim. I am not convinced by that argument given that the facts are effectively identical to the alleged direct disability discrimination claim. The facts relate to the claimant’s perception that Rebecca Taylor was allowed remote working in comparable circumstances to his own when he was not. Even though the amendment is out of time, if the direct disability discrimination claim had survived, there would have been no real prejudice to the respondent to allow the amendment because it would always have been in the position of having to explain the circumstances of Rebecca Taylor’s remote working and was not prejudiced by the passage of time in so doing.[34]However, during the course of this hearing, the claimant conceded that Rebecca Taylor is not a true comparator. I agree with that concession. It seems to me obvious, and I so find, that Rebecca Taylor was never a true comparator. She was a valued employee who resigned her employment for family reasons and moved to Nottingham, from where it was wholly impossible to commute on a daily basis. The respondent persuaded her to remain in its employment, but obviously on the basis that she would be working remotely. The circumstances of the claimant were very different. The claimant was a difficult employee who needed close supervision and close management. Effectively the respondent did not trust him to work remotely at home. He was able to commute to the office on a daily basis. At one stage the claimant suggested that the respondent had deliberately created an important position based in Nottingham, and then appointed Rebecca Taylor to it, and allowed her remote working from there, because she is a woman and the claimant is not. In my judgment that assertion is preposterous. In my judgment the claimant’s claim that Rebecca Taylor was allowed remote working as a woman, and the claimant is in truly comparable circumstances was denied remote working because he is a man, to be wholly without merit. For this reason, balancing the prejudice and hardship between the parties, I refuse the claimant’s late application to amend these proceedings.[35]Finally, a further case management order is attached which relates to the claimant’s remaining wrongful dismissal claim.[1]In this case the respondent has made two separate applications for its costs relating to the successful defence of this action against the claimant. The respondent was represented by Miss Hornblower who made the applications on the respondent’s behalf. The Claimant’s Application to Adjourn[3]The claimant did not attend today, and made an application to adjourn this hearing by email which was received at the Tribunal office at 06:55 this morning. The claimant stated: “I am unfortunately going to be unable to attend this morning. I am travelling a long distance from Blackpool Lancashire, I set off at 4 am this morning, and my vehicle has unexpectedly broken down. I have just explored urgent public transport arrangements, however it appears I will not be able to get there until 3 pm. I fear the tribunal will already be concluded by this point. Could I please ask the matters adjourned until a later date to enable me to attend.”[4]The respondent opposed the application to adjourn the hearing and argued that it should commence as listed at 10 am this morning. The reasons why the respondent asserts that it was in the interests of justice to do so were set out as follows:(i) the claimant has a history of acting dishonestly and disruptively during these proceedings, and this email is scarcely credible and is yet another example;(ii) the email was sent from the claimant’s normal “Outlook.com” email address, and not from a mobile device such as an iPhone or an iPad, which indicates that the claimant had access to his computer. If he had genuinely “unexpectedly broken down” as he now alleges then that would not have been possible;(iii) no other supporting evidence of his alleged predicament has been supplied, for instance photographs of the same by way of an iPhone;(iv) the claimant had initially agreed to the Tribunal’s suggestion to have these applications for costs dealt with on paper without the need for a hearing in person, and has already supplied written representations setting out his objections in response to both costs applications, and the Tribunal is therefore in a position to proceed in any event;(v) the claimant subsequently notified the Tribunal that he wished to attend in person instead, and having made that indication this hearing was listed for that purpose, but the claimant has now failed to attend;(vi) the claimant has already been sent the respondent’s bundle of documents in support of their two applications, and was invited to add documents to this bundle if he wished, but declined to do so; and(vii) the respondent’s solicitors sent the claimant a statement of means form inviting him to provide information as to his means which they explained might be required at this hearing, but having established the same had not been ordered by the Tribunal, the claimant chose not to provide any information as to his means.[5]On consideration I agree with all of the points put forward by the respondent and given that the interests of justice apply to both parties, I decided to hear the respondent’s applications today. In particular I bore in mind that the claimant was fully aware of the nature of the applications and the documents in support, and had been able to respond by way of written representations to the applications, which was his preferred method of dealing with the matter at that time. Enquiry Agent’s Report:[7]The respondent also adduced an enquiry agent’s report this morning, which it received only last night. The claimant has not had the opportunity to see this or to comment upon it, and the respondent will now send it to the claimant for completeness. That enquiry agent’s report confirms the claimant’s new address in Blackpool, and confirmed that he is in employment with Turner White Solicitors in Blackpool. General Background[9]The claimant initially issued these proceedings claiming unfair dismissal, discrimination on the grounds of his disability, and for breach of contract in respect of his notice period. The unfair dismissal claim was struck out because the claimant had insufficient service for the Tribunal to hear that claim. The matter was listed for a preliminary hearing in person to determine whether the claimant was ever a disabled person, and whether the respondent knew, or ought reasonably to have known, of that disability (“the Preliminary Hearing)”. That Preliminary Hearing also considered an application by the claimant to amend his claim to include one of direct sex discrimination. The Preliminary Hearing took place on 12 March 2018 and the Reserved Judgment following that hearing was dated 16 March 2018 and was held not have been a disabled person and his disability discrimination claims were dismissed. His application to amend to include direct sex discrimination was refused. Case management orders were then made to list the claimant’s remaining claim of breach of contract for a substantive hearing, and to prepare appropriately for that hearing. The claimant subsequently withdrew his remaining breach of contract claim before that hearing, and that claim was dismissed on withdrawal by the claimant. The respondent has made two applications for its costs: in the first place for its costs incurred in preparing for and defending the claims against it up to and including the date of the Judgment (“the First Application”); and secondly, for its costs in defending the remaining breach of contract claim up to the date of dismissal, and for preparing its costs under the First Application (“the Second Application”).[10]Findings of Fact Relevant to the First Application[11]The detailed findings made in the Judgment are of direct relevance to the respondent’s applications, and that Judgment should be read in conjunction with the contents of this judgment.[12]With regard to the merits of the claimant’s claim that he was a disabled person, at a previous case management preliminary hearing the claimant was ordered to disclose the medical evidence upon which he relied in support of his contention that he suffered from post-traumatic stress disorder (“PTSD)”. Despite being on notice of what was required, the claimant failed to comply with those orders and failed to adduce any evidence of a formal diagnosis of PTSD; he adduced no medical assessment or other document explaining the alleged cause of any PTSD, and no direct evidence of ever having undertaken cognitive behavioural therapy (“CBT”) as alleged; and the claimant adduced no medical evidence of any sort more recent than 2013. Findings in the Judgment concluded that there was “no cogent evidence” that the claimant had ever suffered from a disability whilst employed by the respondent, and that throughout all of the discussions concerning his application for remote working, the claimant never raised the suggestion that he required remote working because of any illness.[13]Prior to that preliminary hearing, the respondent had sent a costs warning letter to the claimant on 20 February 2018. That letter made it clear that the claimant had failed to provide any formal diagnosis of PTSD; had failed to provide any evidence that he had attended CBT; and had adduced no medical evidence more recent than 2013. It stated that none of the contemporaneous correspondence relating to the claimant’s request for flexible working had ever mentioned any illness or PTSD or related symptoms. In addition, that letter pointed out that it was clear even from the claimant’s own submissions that he had never alleged that he had suffered any sort of disadvantage because of a medical issue, but rather his difficulties stemmed from the length of his chosen commute to and from the office. That letter also pointed out that the application to amend the claim to include one of direct sex discrimination was doomed to failure and was vexatious because the sole chosen comparator was not in the same position as the claimant. That letter explained why the respondent considered the claimant’s claims to be vexatious, unreasonable and with no prospect of success. The claimant was invited to withdraw his claims prior to the hearing and in that event the respondent would agree not to pursue any application for costs. The respondent warned the claimant that if he proceeded with his claims and application to the Preliminary Hearing then the respondent would make an application for costs, which it estimated would then be in the region of £8,000.00 plus VAT.[14]The respondent also makes the following points in support of its First Application. Given the finding in the Judgment that the claimant had “deliberately and dishonestly altered the content of the Study Aid and Study Strategies Report from Staffordshire University to assist a subsequent application for assistance in connection with his CILEx Legal Executive exams” and had relied upon this document to support his claim, the claimant had behaved dishonestly in his attempts to secure a legal qualification, and was guilty of a serious abuse of process in seeking to rely upon this fabricated medical evidence in these proceedings.[15]The respondent also asserts that the claimant has acted unreasonably in publishing comments on this case on his Facebook account which amount to false and defamatory statements which are insulting and detrimental to the reputation of the respondent. The claimant chose to use social media as a tool to seek to harm the respondent’s reputation and business. These Facebook posts include the following: that the respondent had used “fabricated dishonest evidence”; that the respondent “lied, they were misleading, dishonest and doctored documents to their own ends”; that the respondent had “admitted breach of contract, they were in the wrong”; that the respondent had “lied and conspired together” and were “a bunch of crooks”. As can be seen from the Judgment, these were false statements. Indeed, it was the claimant who had acted dishonestly in doctoring documents to his own end. It is also clear that the statements created significant ill feeling towards the respondent as indicated by subsequent comments from the claimant’s followers on Facebook.[16]Finally, the respondent suggests that the claim was vexatious in any event. The claimant’s resignation was followed immediately by that of his partner Ms Ling and it is alleged was orchestrated to cause maximum disruption to the respondent’s business. Immediately following his dismissal, the claimant made a number of personal remarks to Emma Patterson of the respondent on Facebook. These included: “this is just the beginning”; “this will become personal. You’ve tried to fuck with the wrong person”; “the reason I blame you is because you made it personal. That was the worst thing you could have done.” This suggests that the claimant was motivated by personal vendetta against Emma Patterson rather than by a genuine assessment of his legal position.[17]Findings of Fact Relevant to the Second Application:[18]Following the Judgment, the sole remaining live claim for the claimant was that of breach of contract in respect of the balance of his notice period. The claimant had resigned his employment on three months; notice, but subsequently was dismissed for gross misconduct within his notice period. He then obtained alternative employment almost immediately. During the case management preliminary hearing which followed the main Preliminary Hearing, I explained to the claimant that if he had secured alternative employment at a comparable rate of pay after just one month then credit should be given for the same, and the claimant was ordered to provide an updated Schedule of Loss to include all “earnings in any employment since the date of dismissal”. Despite this guidance and the tribunal order the claimant presented an updated Schedule of Loss which still claimed three months’ notice pay without any mention of the alternative earnings which had been received, and also claimed damages for unfair dismissal despite the fact that that claim had been dismissed long ago.[19]The respondent asserts that it obtained a copy of the claimant’s contract of employment from his new employers which indicated that the claimant had lied on oath as to the amount of earnings in his new employment. The claimant then continued to fail to prepare and exchange witness statements as ordered by the tribunal, ahead of the listed hearing to determine the breach of contract claim on 19 July 2018. Nonetheless the respondent had to continue to prepare its defence of the claim appropriately, which included interviewing witnesses, preparing a proposed bundle of documents, and finalising its witness statements. These were all served on the claimant. On 29 May 2018 the claimant then wrote to the tribunal to withdraw his breach of contract claim. The reasons given were that the claimant asserted that he was now homeless and was leaving the country and would have no access to emails. This does not seem to be accurate given that he remained in his alternative employment. The Applications for Costs[21]The respondent makes its two applications for its costs under Rule 76 on the basis that the claimant has acted abusively, vexatiously or otherwise unreasonably in the way in which the proceedings have been conducted.[22]The claimant resists both applications, and asserts that he has not acted unreasonably or dishonestly and was entitled to proceed with genuine claims.[24]The relevant rules are the Employment Tribunals Rules of Procedure 2013 (“the Rules”).[25]Rule 76(1) provides: "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.[26]Under Rule 77 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. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.[27]Under 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;(b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles …"[28]Under Rule 84, 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 (or, where a wasted costs order is made, the representative’s) ability to pay. The Relevant Case Law[30]I have been considered the following cases: Gee v Shell Ltd [2003] [2003] IRLR 82 CA; McPherson v BNP Paribas [2004] ICR 1398 CA; Monaghan v Close Thornton [2002] EAT/0003/01; NPower Yorkshire Ltd v Daley EAT/0842/04; Arrowsmith v Nottingham Trent University [2011] ICR 159 CA; Kapoor v Governing Body of Barnhill Community High School UKEAT/0352/13; Nicholson Highland Wear v Nicholson [2010]IRLR 859; Barnsley BC v Yerrakalva [2012] IRLR 78 CA; Topic v Hollyland Pitta Bakery & Ors UKEAT/0523/11/MAA; Kovacs v Queen Mary and Westfield College [2002] IRLR 414 CA; Shield Automotive Ltd v Greig UKEATS/0024/10; Jilley v Birmingham and Solihull Mental Health NHS Trust [2008] UKEAT/0584/06; Single Homeless Project v Abu [2013] UKEAT/0519/12; Vaughan v LB of Newham [2013] IRLR 713; Raggett v John Lewis plc [2012] IRLR 906 EAT. The Relevant Legal Principles[32]The correct starting position is that an award of costs is the exception rather than the rule. As Sedley LJ stated at para 35 of his judgment in Gee v Shell Ltd “It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to people without the need of lawyers, and that in sharp distinction from ordinary litigation in the UK, losing does not ordinarily mean paying the other side’s costs …” Nonetheless, an Employment Tribunal must consider, after the claims were brought, whether they were properly pursued, see for instance NPower Yorkshire Ltd v Daley. If not, then that may amount to unreasonable conduct. In addition, the Employment Tribunal has a wide discretion where an application for costs is made under Rule 76(1)(a). As per Mummery LJ at para 41 in Barnsley BC v Yerrakalva “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.” However, the Tribunal should look at the matter in the round rather that dissecting various parts of the claim and the costs application, and compartmentalising it. There is no need for the tribunal to find a causative link between the costs incurred by the party making the application for costs and the event or events that are found to be unreasonable, see McPherson v BNP Paribas, and also Kapoor v Governing Body of Barnhill Community High School in which Singh J held that the receiving party does not have to prove that any specific unreasonable conduct by the paying party caused any particular costs to be incurred.[33]When considering an application for costs the Tribunal should have regard to the two-stage process outlined in Monaghan v Close Thornton by Lindsay J at paragraph 22: "Is the cost threshold triggered, e.g. was the conduct of the party against whom costs is sought unreasonable? And if so, ought the Tribunal to exercise its discretion in favour of the receiving party, having regard to all the circumstances?”[34]Where a party has been lying this will not of itself necessarily result in a costs award being made, although it is one factor that needs to be considered. As per Rimer LJ in Arrowsmith v Nottingham Trent University it will always be necessary for the tribunal to examine the context, and to look at the nature, gravity effect of the lie in determining the unreasonableness of the alleged conduct. Nonetheless, to put forward a case in an untruthful way is to act unreasonably, see Kapoor v Governing Body of Barnhill Community High School. The fact that a claimant may not have deliberately lied does not preclude reaching the conclusion that a claim had no reasonable prospect of success or that the claim had not been reasonably brought and pursued, see Topic v Hollyland Pitta Bakery & Ors. In addition, the result of a claim is not necessarily linked to the alleged unreasonable conduct. In Nicholson Highland Wear v Nicholson Lady Smith made it clear that: "a party could have acted unreasonably and an award of [costs] be justified even if there has been a partial (or whole) success. It will depend on the circumstances of the individual case.”[35]Where a claim has been withdrawn, the question for the Tribunal is not whether the withdrawal of the claim is itself unreasonable, but whether the party concerned has acted unreasonably in the conduct of the proceedings, see McPherson v BNP Paribas. A tribunal should not therefore award costs simply because the claimant has withdrawn his or her claim. It should determine whether the conduct overall is unreasonable, and this includes the impact of the later withdrawal.[36]With regard to the paying party's ability to pay, Rule 84 allows the tribunal to have regard to the paying party's ability to pay, but it does not have to, see Jilley v Birmingham and Solihull Mental Health NHS Trust and Single Homeless Project v Abu. One reason for not taking means into account is the failure of the paying party to provide sufficient and/or credible evidence of his or her means. The authorities also make it clear that the amount which the paying party maybe to pay after assessment does not need to be a sum which he or she could pay outright from savings or current earnings. In Vaughan v LB of Newham the paying party was out of work and had no liquid or capital assets and a costs order was made which was more than twice her gross earnings at the date of dismissal. Underhill LJ declined to overturn that order on appeal because despite her limited financial circumstances, there was evidence that she would be successful in obtaining some further employment. Insofar as it does have regard to the paying party's ability to pay, the tribunal should have regard to the whole means of that party's ability to pay, see Shield Automotive Ltd v Greig (per Lady Smith obiter). This includes considering capital within a person's means, which will often be represented by property or other investments which are not as flexible as cash, but which should not be ignored.[37]Under Rule 78(1)(a) a costs order may order the paying party to pay the receiving party a specified amount not exceeding £20,000. Under Rule 78(1)(b) a costs order may order the paying party to pay an amount to be determined by way of detailed assessment, carried out either by the County Court or by an Employment Judge applying the principles of the Civil Procedure Rules 1998. Where the receiving party does not regard the limit of £20,000 to be sufficient an order for summary assessment should not be made in those circumstances, see Kovacs v Queen Mary and Westfield College.[38]Recovery of VAT[39]VAT should not be included in a claim for costs if the receiving party is able to recover the VAT, see Raggett v John Lewis plc which reflects the CPR Costs Practice Direction (44PD).[40]The Claimant’s Means[41]The claimant was on notice of this hearing, and on notice from the respondent that it required evidence of his means, which the claimant declined to provide. It now seems clear from the enquiry agents report that the claimant has obtained alternative employment with another firm of solicitors in Blackpool. The following conclusions have been reached bearing in mind such information as I have on the claimant’s means.
Conclusion
[43]I deal first with the First Application. In my judgment the claimant has acted unreasonably in bringing and pursuing his disability discrimination claims, and his application to amend, to the Preliminary Hearing. He had earlier deliberately and dishonestly doctored a document in support of an application for assistance, and had dishonestly relied upon that same document in the Preliminary Hearing to seek to establish that he was a disabled person. To put forward a case in an untruthful way is to act unreasonably, see Kapoor v Governing Body of Barnhill Community High School. In addition, despite orders to produce the same, the claimant failed to adduce any medical evidence in support of his contention that he was disabled. That assertion was wholly inconsistent with the contemporaneous documents which indicated that the claimant had never suggested that he had suffered any disadvantage by reason of any illness. Furthermore, the claimant ignored the respondent’s clear costs warning letter which gave an explanation as to why his claims had no reasonable prospect of success, and declined to withdraw his claims against an offer that the respondent would not pursue its costs. Nonetheless it was made clear to him that the respondent would pursue an application for costs in the event that he continued, and assessed these at approximately £8,000.00 plus VAT (which was an accurate estimate, for which see further below).[44]Even without bearing in mind the other abusive and vexatious behaviour of the claimant during the course of these proceedings, by way of this unreasonable conduct (and applying the two-stage process outlined in Monaghan v Close Thornton) in my judgment the cost threshold is triggered because the conduct of the party against whom costs is sought was unreasonable, and having regard to all the circumstances in my judgment I decide to exercise my discretion in favour of the receiving party. The respondent therefore succeeds in the First Application.[45]I now turn to the Second Application. It is not generally unreasonable conduct to withdraw proceedings prior to a hearing to determine the matter, and to penalise a party who does so by way of a costs award would discourage others from making sensible and timely decisions to withdraw their cases which save both the parties and the Tribunal system prospective time and costs. I do not find therefore that the claimant’s withdrawal of his claim was of itself unreasonable, which in any event was at least six weeks before the listed hearing.[46]However, the claimant’s conduct must be seen in the light of his conduct throughout these proceedings generally. It can be seen from the above findings that the claimant had acted unreasonably and abusively during the course of the proceedings genuinely. With regard to the breach of contract claim, the claimant gave a deliberately inflated valuation as to his potential claim, and was late in disclosing relevant documents and his potential witness statement as the Tribunal had earlier been ordered him to do. The claimant’s inflated valuation of his own claim was in the region of £14,000, including damages for the claim for unfair dismissal which had been dismissed months previously, whereas the respondent’s counter schedule of loss indicated that the claim could be worth no more than about £350. The respondent was then put to the time and costs of preparing a detailed response to this remaining overinflated claim, which commitment was wasted when the claimant decided to withdraw.[47]In my judgment this was further unreasonable conduct by the claimant in bringing and conducting his claim against the respondent. This gave rise to the unnecessary expenditure of costs in further defending the remaining claim. However, I do not see why the respondent’s preparation time in respect of the First Application for costs should be added to their Second Application. For these reasons allow the Second Application, but only in part.[48]The Amount of Costs:[49]I have seen a schedule of the costs claimed by the respondent under the First Application which was sent in advance of this hearing to the claimant. The costs have been claimed at the hourly rate of £160.00 plus VAT for the respondent’s solicitor, who is a partner in his firm. This hourly rate is below that of the local County Court equivalent rates and in my judgment is reasonable. The total solicitors’ costs claimed amount to over £8,000 plus VAT, but have been capped at the level of £6,000 plus VAT (and counsel’s fees) in accordance with an earlier estimate which was given to the respondent. I consider that this is a reasonable sum for the work undertaken in defence of various claims up to and including conclusion of the original Preliminary Hearing. In addition, Counsel’s fees have been charged in the total sum of £2,510.00 plus VAT of £502.00, for preparing for the case management preliminary hearing; advising on the evidence; advising on draft applications and on the evidence; and the brief for appearing at the Preliminary Hearing. The respondent has paid these sums to its legal advisers, which satisfies the indemnity principle.[50]The total costs under the First Application (which have been incurred and paid by the respondent) are therefore £6,000.00 plus VAT of £1,200.00 and Counsel’s fees of £2,510.00 plus VAT of £502.00 which is a total of £8,510.00 plus VAT of £1,702.00. This is a total sum of £10,212 inclusive of VAT. The respondent is registered for VAT purposes and it is not therefore appropriate to order payment of these sums inclusive of VAT.[51]The claimant is therefore ordered to pay the respondent’s costs under the First Application in the sum of £8510.00[52]I have also seen a schedule of costs claimed by the respondent under the Second Application, which net of VAT comes to £4,144.00 and counsel’s fees of £311.67. I decline to award the full amount of these costs because a certain amount of the work undertaken would necessarily have been undertaken in any event even if the claimant had acted reasonably with regard to his potential breach of contract claim, and some of the work involves preparing and finalising the application for costs under the First Application. Nonetheless I do accept that the was a substantial proportion of this work which was undertaken unnecessarily by the respondent as a result of the claimant’s unreasonable conduct. I award a further £2,000.00 under the Second Application by way of a rough estimate of this amount.[53]In conclusion therefore the claimant is ordered to pay the respondent’s costs in the sum of £10,510.00 which for the avoidance of doubt does not include VAT.[1]The claimant has applied for a reconsideration of the Order for costs against him with reserved reasons dated 9 November 2019 which was sent to the parties on 26 November 2019 (“the Order for Costs”).[2]The claimant first submitted a notice of appeal to this tribunal on 3 December 2018 (rather than an application for reconsideration) but subsequently confirmed that he was making an application for reconsideration by email dated 4 December 2018. The claimant was directed to provide detailed reasons for that application and to copy it to the respondent. The claimant then submitted a detailed application for reconsideration by email dated 11 December 2018. By email dated 13 December 2018 the respondent gave reasons why it opposed the application for reconsideration. By email dated 13 December 2018 the claimant submitted a reply to the respondent’s response to the application. Although the respondent had consented to this matter being determined without a hearing, the claimant requested that the application should be heard in person, and this is the judgment which follows the hearing of his application.[3]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. Although the claimant’s detailed reasons for his application for reconsideration were presented to this tribunal and copied to the respondent on 11 December 2018, which was the day after the 14 day time limit had expired, nonetheless the claimant had submitted a form of appeal and confirmed that he sought reconsideration by email dated 4 December 2018. The application in principle was therefore received within the relevant time limit, and it is in the interests of justice to allow the application to proceed.[4]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[5]The grounds relied upon by the claimant are therefore those set out in his email by way of application dated 11 December 2018, and his reply to the respondent’s response dated 13 December 2018, which the claimant reconfirmed by way of his application in person today.[6]There are four aspects to the claimant’s application for reconsideration, as follows:(i) The first is that the claimant’s late application for postponement of the hearing to determine the respondent’s costs application was refused, and the application went ahead in his absence;(ii) the second is against the first costs order in respect of the proceedings generally (which had led to the Preliminary Hearing on 12 March 2018 and the Reserved Judgment following that hearing dated 16 March 2018 which was sent to the parties on 20 March 2018 (“the Judgment”));(iii) the second costs order (in respect of the claimant’s remaining breach of contract claim, which he subsequently withdrew); and(iv) in any event, the amount of the Order for Costs, given the claimant’s means. I deal with each of these in turn.[7]With regard to the first matter, and the refusal to allow the claimant’s late application to postpone the respondent’s application for costs which was heard on 9 November 2018, this is dealt with in numbered paragraphs 2 to 5 inclusive of the Order for Costs. The claimant now pursues a slightly different argument with regard to his unavailability for that hearing at short notice, namely that his car had not broken down during the long trip from the North of England to this Tribunal on the morning of the hearing, but rather that his engine warning lights had indicated problems, and that he was able to turn around and drive home. The claimant’s original explanation was unconvincing, and this is now a different version. Be that as it may, as noted in paragraph 4(iv) and (vi) of the Order for Costs it had previously been agreed that the hearing would proceed by way of written representations, and the claimant had supplied written representations setting out his objections to both of the respondent costs applications, and had agreed the relevant bundle of documents in support. The claimant has therefore had the opportunity to prepare fully to respond to both applications, and his objections were considered carefully. I decided it was not in the interests of justice to allow his application to postpone the hearing for the reasons set out in the Order for Costs. Similarly, I do not consider that it is in the interests of justice now to revoke the Order for Costs and to re-hear the respondent’s applications, because the claimant has already had the opportunity to oppose those applications, and there is no new information which has come to light and which was not reasonably available to the claimant at the time of those applications. There is no reasonable prospect of the earlier decision being varied or revoked.[8]With regard to the second matter, namely the respondent’s first application for costs, the claimant seeks reconsideration on the basis that he objects to the conclusion that he had acted unreasonably in bringing and pursuing his disability discrimination claims, and his application to amend to include a sex discrimination claim, to the conclusion of the Preliminary Hearing. However, my conclusions in that respect were based on my findings which were set out in the Judgment, which included findings relating to the claimant’s dishonesty. The claimant did not seek reconsideration of that Judgment, nor did he seek to submit an appeal against it. The respondent was entitled to rely upon the findings as set out in the Judgment in its successful application to the effect that the costs threshold was triggered, for the reasons explained in paragraphs 43 and 44 of the Order for Costs. For these reasons I do not consider that it is in the interests of justice to revoke or vary the Order for Costs in this respect.[9]With regard to the third matter, namely the respondent’s second application for costs, the claimant effectively repeats his reasons for his late withdrawal of the remaining breach of contract claim which were before this Tribunal by way of his written representations at the time the costs applications were heard.[10]Effectively, the matters now raised by the claimant were considered in the light of all of the submissions and evidence presented to this Tribunal before the Order for Costs was made.[11]The earlier case law suggests that the interests of justice ground should be construed restrictively. The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.[12]More recent case law suggests that the "interests of justice" ground should not be construed as restrictively as it was prior to the introduction of the "overriding objective" (which is now set out in Rule 2). This requires the tribunal to give effect to the overriding objective to deal with cases fairly and justly. As confirmed in Williams v Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the "interests of justice" ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council v Marsden [2010] IRLR 743, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include that there should be finality in litigation, which is in the interest of both parties.[13]Finally, I turn to the fourth matter, which is the amount of the Order for Costs. The claimant does not challenge the amount of the Order for Costs on the basis that the work was not undertaken by the respondent, or that the amount is itself unreasonable. Rather, the claimant challenges the amount on the basis that he is unable to afford to pay it. The claimant has since submitted a statement of means which suggests that he is impecunious, and effectively relies on a monthly payment from his parents to ensure that his monthly outgoings are not exceeded by his monthly income. Even if correct, this is not information which was not reasonably available at the time of the hearing of the application for costs and which has since come to light. The respondent’s solicitors had informed the claimant in advance of their application for costs that the Tribunal would consider his means, and invited him to provide details of the same, which the claimant at that stage declined to do. Indeed, the information now provided largely predates the hearing date of the original application for costs, and it was not presented then.[14]In addition, as explained in paragraph 36 of the Order for Costs, Rule 84 allows the Tribunal to have regard to the paying party’s ability to pay, but it does not have to. Furthermore, the fact that a party’s ability to pay is limited, does not, however, require the Tribunal to assess a sum that is confined to an amount that he or she could pay (see Arrowsmith v Nottingham Trent University [2011] ICR 159 CA which upheld a costs order against a claimant of very limited means).[15]Accordingly, I refuse the application for reconsideration pursuant to Rules 70 and 72 because there is no reasonable prospect of the original decision being varied or revoked, and it is not in the interests of justice to allow it.